ORDER S. A. Mahmood (Chairman)--By this appeal under section 8(1) of Punjab Civil Services Appellate Tribunal Ordinance, 1970, Ch. Ali Ahmad appellant prays that he may be declared senior to Messrs Bahawal Khan, Abdul Hamid, Bashir Masih, Ghulam Rasul, Muhammad Afzal Joiya, Nasir Ahmad, Muhammad Hussain, Shamas ud-Din, Abdur Rahim Rana Muhammad Iqbal and Muhammad Amir, respondents No. 2--12 in the grade of Accounts Clerk, and that respondent No. 1 may be directed to place him senior to them in the seniority list. It may incidently be mentioned here that the appellant has been shown at serial number 32 in the impugned seniority list with respondents No. 2 to l2 above him, but the appellant has not challenged the seniority of persons who figure above him at serial numbers 15, I6, 25, 28, and 29 in the impugned seniority list. It is explained on his behalf that their seniority has not been impugned by this appeal for the reason that they ranked senior to him in the D. C.'s office concerned. In respect of person at serial number 26, who is also not impleaded, it is stated that he has not been impleaded as a party as he has retired from service. The appellant appears alongwith Mr. Mushtaq Ahmad Masood, Advocate. Mr. Muhammad Usman Ghani Superintendent appears on behalf of the Commissioner Sargodha Division respondent No. Messrs Ghulam Rasul, Nasir Ahmad and Rana Muhammad Iqbal respondents 5, 7 and 11 are only present out of respondents Nos. 2 to l2. The remaining respondents are absent in spite of service. The appellant was appointed as a Junior Clerk in the office of the D.
C., Lyallpur on/17th March, 1948, and was confirmed from lst January 1961. He was promoted in the same officer as officiating Senior Clerk from lst July 1962. With effect from 7th May 62 on the promulgation of West Pakistan Subordinate Treasury and Accounts Service Rules, 1962, the Accounts and Treasury Service was set up as a new and independent service governed by these Rules. Rule 5(6) of these Rules provided that vacancies in the post of Accounts Clerk shall be filled by initial recruitment on the recommendation of the Selection Board of the Division in which the vacancy occurs. It was, however, directed by the F. D. in its letter dated 6th September 1962 that the posts created in the new service shall be filled from the existing staff working in the Treasuries/sub- Treasuries having the requisite qualifications, as laid down in the service Rules, who should be given preference for appointments to the posts in the new service, but in case the required number of posts cannot be filled from amongst the existing personnel, persons serving in the Rev.
Department and having the required experience should be appointed. Reference to the Rev.
Department meant the office of the D.C. It was further required that the existing staff working in the Treasuries may be allowed to indicate their choice for being absorbed in the new service. In accordance with these directions, the Commissioner of the Division required all the D. Cs. of the Division to ensure compliance and to submit required reports The new posts, which had to be filled, were sanctioned on 13th October 1962. In compliance with the above direction, options were invited by the D. C. Lyallpur and he recommended on 15th October 1962 the names of Mr. Bahawal Khan, Mr. Abdul Hamid, Rana Muhammad Maqbool, Mr. Ghulam Rasul respondents and others for appointment as Accounts Clerks. Their names were forwarded to the Commissioner of the Division by the D. C. with his letter dated 15th October 1972. The other respondents were recommended by D, Cs. in which they were serving in the treasuries. Their names also appear to have been forwarded to the Commissioner for appointment. As appears from the particulars of the respondents stated in the grounds of appeal, respondents No. 2 to 8 joined the Treasury and Accounts service on 7th May 1962, while respondents No. 9, 10, 11 and l2 joined that service on 1st October 1962, 24th January 1963, 17th February 1963 and 3rd December 1963 respectively. On 13th December 1963, Government sanctioned temporary posts of leave reserve Clerks (Accounts Clerk) for the year 1964-65 and in order to fill these newly-created temporary posts, the treasuries were required to obtain options from those serving in their offices. The appellants' option having been invited he opted to serve in the Treasury at Lyallpur as leave reserve clerk under the West Pakistan Subordinate Treasury and Accounts Service Rules, 1962. By Order of lst June 1964, he was appointed as leave reserve clerk in the Lyallpur Treasury with immediate effect against one of the newly-created temporary posts sanctioned by the Government for 64-65 in relaxation of rule 5 of the West Pakistan Subordinate Treasury and Accounts Service Rule?, 1962 by the Government. This relaxation had to be made in the case of the appellant in appointing him as Accounts Clerk since rule 5(6) provided that vacancies in these posts shall be filled by initial recruitment on the recommendation of the Selection Board for the Division. His was not therefore an appointment by initial recruitment. He remains an Accounts Clerk in the Lyallpur Treasury. The appellant claims seniority over respon dents Nos. 2 to l2 on the ground that he was confirmed as a Junior Clerk from lst January 1961, while respondent No. 2 though confirmed on the same date was junior to him in age, and Shamas-ud- Din respondent No. 8 was confirmed later than him from 17th September, 61 and the other respondents are not yet confirmed as Juniour Clerks. This seniority was claimed under rules I6 of the Punjab District Subordinate Service Rules, 1942 which provided for seniority to be determined by the date of substantive appointment in each cadre of the Service. Under Rule 16(c) (//) where the date of substantive appointment is the same, amongst those recruited by direct recruitment, an older member shall be senior to a younger member. The appellant is justified in claiming seniority over only such respondents as belonged to the offices of the Lyallpur District, since under the 1942 Rules, 'Service* means the Punjab District Subordinate Service and comprised of Sections, each section constituting a separate cadre, as is clear from Rules 11, that is to say, the service was organised on district basis and the appointing authority was the D. C. of each district for / Junior Clerks. There was thus, no common seniority in the case of Junior Clerks belonging to different districts, and the claim of the appellant to seniority over those who were junior Clerks in districts other than* Lyallpur is not well founded. In respect of Mr, Bahawal Khan, Mr. Ghulain Rasul, Mr. Nasir Ahmad and Mr. Abdul Hamid and Rana Muhammad Iqbal, who belonged to Lyallpur district service, he can claim seniority over them. He was senior to them as a Juniour Clerk since he was confirmed from lst January, 1961, while they except Bahawal Khan were not confirmed. Mr. Bahawal Khan was junior to the appellant as he was younger in age. Rule 9(1) of 1962 Rules provides that inter se seniority of the members of the Service in the various grades shall be determined : (a) in the case of members appointed by initial recruitment in accordance with the order of merit determined by the selection Board provided that persons selected for the Service in an earlier selection shall rank senior to the persons selected in later selection ; and (b) in the case of persons appointed otherwise with reference to the dates of their continuous appointment therein ; provided that if the date of continuous appointment in the case of two or more members of the service is the same, the older official if not junior to the younger official or officials in the next below grade shall rank senior to the former official or officials. On the basis of the above Rules, seniority is to be determined either by order of merit or by the date of continuous appointment, depending upon whether it is a case of initial recruitment or appointment otherwise. In this connection, it is necessary to mention that the appellant as well as respondents Nos. 2 to l2 were in service as Junior Clerks in different offices and they were appointed to the new Treasury Service from various dates. Respondents Nos. 2 to 8 were oppointed to the Treasury Service as Accounts Clerk from 7th May, 1962, while respondents Nos. 9 to l2 were appointed respectively on 1st October, 1962, 24th January 63, 17th February 63 and 3rd December,
63. The appellant was appointed to the service on lst June, 1964. As they were all in service already, they cannot be treated as being initial recruits falling under clause (a) of rule 9. They were obviously appointed otherwise. In the case of the appellant his appointment was made in relaxation of rule Sib). Therefore, having been appointed otherwise, the dates of their continuous appointment is to govern their seniority. Under these Rules the respondents having become members of the Service under rule 9(1) (b)^ the respondents ranked senior to the appellant since his date of continuous appointment to the service is later than all the respondents that date being lst June,
64. It may also be mentioned that under the Rules this being a new Service and respondents having appointed to the new service earlier than the appellant he had to rank junior to them. In this connection, it is significant that the appellant did not, in opting for this service make any reservation that he was not willing to joia the Treasury and Accounts Service except on the condition that his past service is considered and counted. Thus, by strict application of the 1962 Rules, the appellant cannot be declared senior to any of the respondent. We cannot, however, help mentioning that it is a fit case for the exercise of the power by the Governor under Rule 14 of the 1962 Rules which provides that whenever in the application of these rules the terms and conditions of service of any person serving in connection with the affairs of the Province of West Pakistan as guaranteed by any law for the time being in force is likely to be adversely affected, the Governor of West Pakistan shall make appropriate orders to safeguard the constitutional and legal rights of such persens. We recommend that the] appellants' case may be considered by the Governor for exercise of his powers under rule 14 of these Rules. It may be pointed that the* appointment of the appellant and respondents No. 2 to l2 has not in fact been made in accordance with rule 5. In this case, neither the appellant nor respondents No. 2 to l2 can be treated as initial recruits They were in actual fact all transferred from the District Service of the various districts to the new Treasuries and Accounts Service, which consists under rule 3 of Divisional cadres and not of District cadres to which the appellant and respondents originally belonged. It is thus a case of appointment of the appellant and respondents Nos. 2 to l2 to the new service by transfer from different offices, which constituted different cadres. On the pointed day, the respondents No. 2 to 8 become members of the new service with effect from 7th May, 62 so that became members of the Divisional cadre instead of district cadre. The persons appointed to the new cadre were taken from the district cadre. As such it was a case of reorganisation the principle applicable for determining seniority is the date of continuous appointment to the grade. It is also a case, for all practical purposes of reorganization of a new divisional cadre from among district staff cadre, which entitles those who are transferred to the benefit of their past service.
There is no doubt in this context that the appellant was senior as Junior Clerk to respondent Mr. Bahawal Khan Mr. Abdul Hamid, Mr. Nasir Ahmad and Rana Muham nad Iqbal, who belonged to the Lyallpur cadre. Though the other respondents did not belong to this cadre, their dates of appointment in different offices as Junior Clerk are later and they except Mr. Shamsuddin were not even confirmed. This Shamsuddin was confirmed as Junior Clerk from a later date than than the appellant. The date of continuous appointment of Shamsuddin is later than that of the appellant. In fact, the date of continuous appointment of respondents Nos. 2 to l2 is later than the date of continuous appointment of the appellant as Junior Clerk in the office of D. C., Lyallpur, that date being 17th March, 1948. Ta the circumstances of this case we consider that the rule of continuous appointment in the rank of Junior Clerk should be the determining factor for seniority. It is a case of hardship to the appellant that he should lose about I6 years of his service in being appointed to the new Treasury and Accounts Service. He also becomes junior to some of the respondents, who were his juniors. We, therefore, recommend that in case of the appellant and respondents No. 2 to l2 the Governor may be pleased to consider whether relief is not to be granted to the appellant under Rule 14 of the 1962 Rules as a clear hardship is involved to him in the application of the 1962 Rules.
We may mention in this connection that the F. D. ordered on 28th February 68 that it was not the intention of the Government in its letter dated 7th October 65 to arbitrarily affect seniority of persons transferred to the Treasury and Accounts Service without any cause. The F. D., therefore, advised in its letter No. Try. F-I-II(l)/68, dated 28th February 68 that inter se seniority of the members of the district establishments existing before 7th May 1962 on their absorption or adjustment in the West Pakistan Subordinate Treasury and Accounts Service with effect from 7th May 1962 or after that date may be maintained. We are inclined to agree with this advice. Acting on this advice, a seniority list as on 31st October 1968 was issued in October 1969 in which the appellant ranked senior to the respondents. While he was at serial No. 27 the respondents figured below him. At a later stage, a reference seems to have been made to the Law Department/ which advised that seniority should be determined in accordance with the Rules, since there could be do question of retrospective seniority with effect from 7th May 1965 in case of officials joining as late as 1965. It was on receipt of this advice that the impugned seniority list was drawn up and the appellant made junior to the respondents No. 2 to l2. As pointed out by us, this was initially a case of re-organisation and the appointment of the appellant and respondents Nos. 2 to l2 has not been made strictly in accordance with rule 5. In the circumstances, the rules need not be strictly applied and the rule of continuous appointment as Junior Clerk by giving credit of past service as'in the case of transfers in the public interest may well be the equitable and just basis for determining their inter se seniority. With the above observations we dispose of the appeal leaving the matter in the exceptional circumstances of the case to be decided by the Governor under Rule 14 of the 1962 Rules. The parties are left to bear their own costs. The security deposit made by the appellant may be refunded to him. The End {20FB11B8-6748-4C93-BD72-BF2E037F227E}