ORDER Saad Saood Jan (Chairman).--This is an appeal by Mr. Irshadul Haq, Assistant Horticulturist, Agriculture Department impugning his seniority qua respondents No. 2 and 3 in the seniority list of PAS II Officers (Horticulture Group) working under Punjab Agricultural Research Institute, Lyallpur and Rapid Soil Fertility Survey and Soil Testing Institute, Lahore, which was notified by respondent No. 1 vide notification No. SO (AE1)-1(31) (h)-1-81/74 dated 12-8-1972 and later amended by notification No. SO(AEl)-l-81/74, dated 3-8-1974. The prayer of the appellant in substance is that he should be declared senior to respondents 2 and 3.
3. The appellant, on the recommendation of the West Pakistan Public Service Commission, was appointed as a direct recruit to the temporary post of Assistant Horticulurist in W. P., A. S. Class II vide Government of West Pakistan Agriculture Department notification dated 16-9-1969. Before the appointment of the appellant Messrs Abdur Rahim, Haji Muhammad Sharif and Sh. Hamid Mazhar (the latter two being respondents 2 and 3 respectively in the instant case) had been promoted as Assistant Horticulturist after consultation with the Public Service Commission. Whereas Sh. Hamid Mazhar (respondent No. 3) was promoted and appointed as Assistant Horticulturist in the Department, bis two seniors M/s Abdur Rahim and Haji Muhammad Sharif (who were then on deputation with the C. D. A.) were shown to have been promoted in absentia. The promotion of respondent No. 3 was qualified with the observation "Till the return of any of his seniors". The case of the appellant is that all the three officers I.e, Mr. Abdur Rahim and respondents No. 2 and 3 were promoted against one available vacancy. It is contended that in terms of Government of Puojab Circular instructions of 5-3-1973, only one of the 3 promotees could be considered senior to him and the other two promotees (respondents 2 and 3) should rank junior to him.
4. The circular instructions of the Government of the Punjab dated '5-3- 1973 read as under: "I am directed to say that sometimes Government Servants on deputation in autonomous bodies or in other Government Departments get promotion in absentia and then the next senior official gets promoted against the same vacancy. If the next senior official also happens to be on deputation, another departmental official gets promoted In this way, two or more officials get promoted against one and the same vacancy. As promotees they maintained their inter se seniority but if a direct recruit is aopornt to the same service afterwards, the question arises whether the latter would rank junior to all such promotees or only to one of them. (2)
Government are of the view that in such a situation, there is only one vacancy in the lower post was entitled to be promoted. The next junior officials get the benefit of promotion only as a matter of work arrangement which cannot affect the seniority of the direct recruits. It has, therefore, been decided that if two or more officials are promoted against the same vacancy, then only one of them will be able to claim seniority against the direct recruits. The others will get benefit of seniority when they are regularly promoted against separate independent posts in their own right and not as a make shift arrangement.*'
5. The operative part of the order dated 21-11-1968, promoting Mr. Abdur Rahim and respondents 2 and 3 as Assistant Horticulturist reads as under: 'The Government of West Pakistan in consultation with the West Pakistan Public Service Commission is pleased to promote: (1) Mr. Abdur Rahim, Research Assistant presently on deputation with the C. D. A. (2) Haji Muhammad Sharif, Research Assistant presently on deputation with the C. D. A. (3) Sh. Hameed Mazhar, Research Assistant IN ABSENTIA till the return of any of his seniors to the post of assistant Horticulturist Date Palm Research Sub-Station, Jhang in W.P.A.S. (II)." 6. lt has been argued by respondents No. 2 and 3 before us that they are governed by the West Pakistan Agriculture Service (Research Wing) (Class II) Rules, 1963), and their seniority has to be determined according to the provisions in the said rules and not by circular instructions of the Government of a much later date.
The circular letter of the Government of the Punjab of 5th March 1973, the contents of which have been repro-j duced above, contains specific instructions of a general applicability and has*. been addressed to all the concerned authorities in the Province as indicated] below: I "(l) All Administrative Secretaries to Government of the Punjab. (2) All Heads of Attached Departments in the Punjab. (3) All Regional Heads of Departments in the Punjab. (4) All Commissioners of Divisions in the Punjab. (5) All Deputy Commissioners in the Punjab. (6) All District and Sessions Judges ia the Punjab. (7) The Secretary, Punjab Public Service Commission, Lahore. (8) The Secretary to Governor of the Punjab, Lahore. (9) The Registrar, High Court of the Punjab, Lahore. (10) The Secretary, Provincial Assembly of the Punjab, Lahore." The copies of the said circular have also been endorsed to:
1. All the Deputy Secretaries and Section Officers/(0. S. D. Records) in the S. & G. A.
D., and 2. Private Secretaries to Chief Secretary/Additional Chief Secretary, S. & G. A. D. It has been held in a large number of cases by the Supreme Court that such instructions issued by the appropriate Government have the force of statutory rules. Thus in the case of Faizullah Khan v.
Government of Pakistan (1) their Lordships observed: " * (1) PLD 1974 SC 291 1975 Irshad-ul-Haq v.
Secy, to the Govt, of thi Punjab (Saad Saood Jan, Chairman) "This Court has stated on several occasions that even instructions contained in Memoranda issued by the appropriate Government could be regarded as being in the nature of statutory rules provided they are expressed with precision and yet possess generality so as to be capable of application to a large number of cases --See Pakistan v. Abdul Hamid, Province of West Pakistan v. Din Muhammad, Government of West Pakistan v. A. A. Aziz and Habibur Rehmans. West Pakistan Service Commission.** 7. The said Circular Instructions have been issued for the purpose of regulating the seniority of direct recruits vis-a-vis promotees in a case where more than one officer gets promoted against one vacancy in the Department on account of a number of officers being on deputation outside the Department. It has been ordered that in such cases only one of the promotees will claim seniority over the direct recruits and all those who have availed of fortuitous promotion will get benefit of seniority only when they get promoted against independent posts in their own right. The Circular Instructions are therefore of specihc nature and also of general applicability as these are addressed to all the concerned authorities in the Province for being acted upon. The Circular Instructions of 5th March 1973 have thus the force of statutory rules and we find no force in the argument of respondents 2 and 3 on this score.
8. Respondents 2 and 3 have further argued that whereas circular instructions were issued on 5th March 1973 the seniority list impugned by the respondent was issued much earlier on 12th August 1972. Therefore, if at all, these instructions have the force of statutory rules, it could not be with retrospective effect. A perusal of the said seniority list indicates that in the 'remarks column' against the names of some of the officers it has been mentioned that the seniority is disputed or that the claim of seniority is under consideration etc.^which gives a tentative status to the seniority of the persons against whom such remarks have been added. The name of the appellant appears at serial number 5 in the said seniority list under the "Horticulture Group" and his position in the seniority list is qualified with the observation: "seniority disputed". The said qualification was, however, deleted*through a notification of 3rd August, 1974 which imparted finality to the seniority of the appellant and gave him cause of action to appeal before this Tribunal. The seniority list impugned by the appellant is, therefore, the one which came into existence on the 3rd August 1974 which date is subsequent in point of time to the date of issue of the circular letter of 5th March 1973. The application of the Circular instructions in the irstant case is therefore prospective and not retrospective. As such the plea of the respondents 2 and 3 in this respect is misconceived.
9. The date of entry into service of the appellant is 14th October 1969. and we have been informed on behalf of respondent No. 1 that on this date there were 5 posts of Assistant Horticulturists in the Department against which there were the following 5 officers, besides the appellant, on the rolls of the Department: (1) Mian Abdul Ghafoor (2) Mr. Ghulam Mustafa (3) Mr. Abdur Rahim (4) Haji Muhammad Sharif (respondent No. 2) (5) Mr. Hamid Mazhar (respondent No. 3) At the relevant time Mr. Abdur Rahim was on deputation to C. D. A. and as such, there was one clear vacancy in the Department against which the appellant was recruited.
Therefore, the notion that on the date of entry into service of the appellant there was a situation where 3 officers were being counted against a single vacancy is erroneous. With this finding, the case of the appellant falls to the ground. We, therefore, find no force in the appeal and dismiss it accordingly with no orders as to costs.