' SAAD SAOOD JAN, J.--These are six appeals by special leave from the judgment dated 28-12-1985 of the Punjab Service Tribunal whereby the appeals preferred by Messrs. MA. Lone, Raja Muhammad Ashraf Bhkti and Rao Shamsher Ali Khan challenging the correctness of the seniority list of officers of the former Provincial Civil Service (Executive tranch) (Grade 20 to 18), corrected up to 31-8-1982, were accepted.
2. Messrs MA.Lone, Raja Muhammad Ashraf Bhatti and Rao Shamsher Ali Khan, hereinafter referred to as the respondents were members of the former Provincial Civil Service (Executive Branch).
Mr.MA. Lone was in the lower tier of Grade-18 while the other two respondents were in Grade-17. In July 1973 Messrs MA. Lone and Raja Muhammad Ashraf Bhatti organized successful raids on certain shops in Rawalpindi. These raids were highly appreciated by the Federal Government which recommended to the Provincial Government that they should be given accelerated promotion to the next step. In pursuance of this recommendation the Provincial Government by an order dated 27-12-1974 promoted Mr.MA.Lone to the higher tier in Grade-18 and Raja Muhammad Ashraf Bhatti to the lower tier in Grade-18. Similarly, in appreciation of his highly meritorious record of service, Rao Shamsher Ali Khan who was an officer in Grade-17 was promoted to Grade-18 on 18-2-1977.
These out of turn promotions caused considerable resentment among officers who were senior to the respondents and they made departmental representations but without eliciting any favourable response. In July 1977 Martial Law was promulgated in the country. In pursuance of Martial Law Instruction No,21 the cases of the respondents were referred to the Provincial Selection Board. On the recommendations of the Selection Board the accelerated promotions allowed to the respondents were cancelled and they were reverted to their pre-promotion grades. However, subsequently on their representation notifications of cancellation were withdrawn.
3. In 1982 the Provincial Government in the Services and General Administration Department issued a provisional seniority list of the members of the former Provincial Civil Service (Executive Branch).
Para (v) of the letter accompanying the list stated:-- "The officers granted out of turn promotions, over and above their seniors, have been assigned seniority along with their batchmates as decided by the Provincial Selection Board in their meeting held on 18-3-1980. The officers, whose batchmates have not yet become ripe for promotion, have been entered at the tail of the list provisionally and they shall continue to be relegated in seniority till their batchmates get promotion, when their names will be entered at their proper places."
' In the seniority list against the names of the respondents the following note was added:-- "Shall continue to be relegated in seniority till thier batchmates get promotion."
' The respondents agitated against paragraph (v) and the note before the Provincial Government but without any success. They then preferred appeals before the Punjab Service Tribunal. Their appeals were accepted and a direction was issued to the Provincial Government to corrert the seniority list by assigning appropriate places therein to the respondents in accordance with their dates of induction in Grade-18. From the judgment of the learned Tribunal, the Provincial Government as well as as some of the officers who were senior to the respondents in Grade-17 have preferred these appeals.
4. One of the respondents, namely Mr.M.A.Lone, has since retired from service. However that may be, the proposition that needs consideration in all these appeals is whether the respondents who were granted out of turn promotions can claim seniority in Grade-18 over those who were senior to them in Grade-17 and were subsequently promoted in their own turn to Grade 18. In this context the provision that needs to be first noticed is section 8, the Punjab Civil Servants Act. It creates eligibility for promotion to the higher grade in favour of every civil servant who possessed the minimum qualifications. The eligibility so created is reflected in rule 14(1), the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which makes all persons holding posts in a functional unit in the same grade who possess the minimum qualifications eligible to compete for promotion. The two provisions, that is, section 8 and rule 14(1), when read together leave no room A for doubt that whenever a promotion is to be made, the cases of all those who possess the minimum qualifications for promotion are required to be considered; otherwise the word 'compete' as occurring in rule 14(1) would become meaningless. Admittedly, when the respondents were granted out of turn promotions, a large number of officers senior to them were kept out of consideration and thus out of competition as their cases were not examined by the Government alongwith those of the respondents. In the absence of any competition it is a matter in the realm of conjectures whether the service record of Rao Shamsher Ali Khan was of such exceptional quality or the raids conducted by Messrs M.A.Lone and Raja Muhammad Ashraf Bhatti were of such an extraordinary fact that if they had come in competition with those who were senior to them in Grade-17 they would have scored over the latter. On behalf of the respondents our attention was drawn to the amendment made in the Punjab Civil Servants Act, 1974, by Act VI of 1987 whereby the competent authority was empowered to make out of turn promotions in the case of civil servants of exceptional qualifications and ability but that amendment is irrelevant so far as these appeals are concerned as the rights of the parties before us became crystallized long before the coming into force of the ...Amending Act. In the circumstances, a question arises whether those who were senior to the respondents would on promotion stand relegated to a lower position with reference to the respondents even though they were in violation of rule 14(1), ibid, kept out of competition when the respondents were promoted. It may be mentioned that it is not unusual for the Government to promote a junior officer to a higher Grade without considering an officer who is senior to him, but then in the seniority rules provision has been made to protect the seniority of the senior officer. In this context reference may be made to Explanations II and III to rule 8(b), the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. These Explanations read as follows:-- "Explanation II--If a person junior in a lower grade is promoted to higher grade by superseding his senior and subsequently the latter is also promoted, the promoted first shall rank senior to the one promoted subsequently.
Explanation III.--Subject to the provisions of rule 14 of these rules, a junior appointed to a higher grade shall be deemed to have superseded his senior only if both the junior and the senior were considered for the higher grade and the junior was appointed in preference to the senior."
' As observed by this Court in the case of Naseer Mahmood Akhtar v. Mahmood Ali Malik PLD 1990 SC 725 Explanation III is a protective provision preserving the interest of those who were deprived of a fair consideration at the time when they had a right to be considered. It sets out the only situation where a senior may be treated to have been superseded by his junior. As already noticed above, the cases of officers senior to the respondents were not considered when the respondents were promoted; consequently the respondents cannot be taken to have superseded the former. There is, therefore, no reason why those officers who were not considered when the respondents were promoted should not be granted the benefit of the protective provision of Explanation III and allowed seniority in Grade-18 on their promotion to the said Grade which they would have ordinarily enjoyed if they had been permitted to compete for promotion.
5. Learned counsel for the respondents relied upon the provision of subsection (2) of section 7, the Punjab Civil Servants Act, 1974, which reads as follows:-- "Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: ' Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade retain their inter se seniority in the lower grade."
' It is contended that the respondents were entitled to count their seniority in Grade-18 from the date of their regular promotion to that Grade and as such they should not be relegated in the seniority list with reference to those whose dates of promotion were posterior in point of time. It is difficult to accept this contention. This subsection merely fixes a point, of time from which the seniority of a civil servant is to be counted. But when a question arises as to how he is to be placed with reference to the other civil servants in the same grade, the matter is governed by subsection
(4) of the same section which reads as follows:-- "Subject to the provisions of subsection (3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed."
Explanation III to which reference has been made above is part of the rule envisaged in the subsection. While accepting the appeals of the respondents the learned Tribunal entirely overlooked the effect of the said Explanation and for that reason its judgment cannot be supported. Accordingly, we would accept these appeals, set aside the judgment of the learned Tribunal and direct that the seniority of the respondents vis-a-vis other officers should be regulated in the light of the observations in this judgment. There will be no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.