' SAAD SAOOD JAN, J.--This is an appeal by special leave from the judgment dated 19-7-1982 of the Punjab Service Tribunal whereby the appeal of Sardar Ahmad Zia, respondent No,3, in the matter of seniority was allowed.
2. Sardar Ahmad Zia was serving as Tehsildar. Consequent upon disciplinary proceedings taken against him he was compulsorily retired from service. He filed an appeal before the Punjab Service Tribunal against the order of compulsory retirement; it was allowed and a direction for his reinstatement was given. Consequently, by an order dated 24-7-1977 he was reinstated in service from the date he was retired therefrom.
3. In December 1970 the names of serving Tehsildars were referred to the Punjab Public Service Commission for promotion to the Provincial Civil Service (Executive Branch). The Commission did not consider the case of Sardar Ahmad Zia for promotion on the ground that he was facing a departmental inquiry. However, a number of Tehsildars junior to him were approved for promotion and they were in due course appointed to the Provincial Civil Service.
4. By an order dated 2-3-1981 Sardar Ahmad Zia was also promoted to the Provincial Civil Service.
The minimum qualification for appointment to the said service was a Bachelor's degree. As he had studied only up to Intermediate level the Government made an order relaxing the said qualification in his case. After his promotion he made a representation to the Government that he should be shown senior to those members of the service who were junior to him as Tehsildars for the reason that his case was not considered at the time when they were promoted. His representation was rejected by the Government, whereupon he preferred an appeal before the Punjab Service Tribunal. The learned Tribunal accepted the appeal and directed the Government to place him at his correct 'position in accordance with his seniority in the grade of Tehsildars. From the judgment of the learned Tribunal the appellants who are affected thereby have come in appeal to this Court.
5. It is argued on behalf of the appellants that under rule 7(1), Provincial Civil Service (Executive Branch) Rules, 1964, no person could be appointed to the service unless he was a Graduate from a recognized University. Sardar Ahmad Zia did not possess this qualification; as such at the time when they were promoted to the Provincial Civil Service he was ineligible for promotion.
Consequently, he could not claim seniority over them on the ground that he was senior to them in the lower Grade of Tehsildar.
6. There is merit in the appellants' contention. No doubt the general rule is that a senior officer would regain his seniority over an officer junior to him who has been promoted earlier in the event that his case was not considered when the junior officer was promoted. But then it is subject to an important limitation, that is, that he should also be eligible for promotion at the time when the junior officer received his promotion. In this context reference may be made to the judgment of this Court in the case of Naseer Mahmood Akhtar v. Mahmood Ali Malik (PLD 1990 SC 725) which has been followed by this Court 'in a number of subsequent decisions, including the case of Nek Muhammad Ropaal v. Government of the Punjab (PLD 1990 SC 672). In the case of Naseer Mahmood Akhtar this Court observed: "The question that arises in these cases is whether a senior who is for reason of qualifications or length of service or for any other reason ineligible to be considered at all for promotion, will regain his seniority against his junior who is otherwise eligible and qualified and is promoted when the permanent vacancy occurs and continues in it. Explanation III reproduced above which contains a deeming clause, presupposes the availability of the senior officer to be considered alongwith junior officer for promotion. If the very eligibility of such an officer to be so considered does not exist, there is no question of his being considered or benefitting from this clause because in any case a person who is ineligible for promotion has to stand at a greater disadvantage than a person who is eligible for promotion but cannot match his suitability for the job. The interpretation given to the rule by the Tribunal makes the entire rule unworkable. If an ineligible and an unqualified senior has to regain on promotion his seniority of the lower grade against the earlier promoted junior, then the seniority of two such promotees cannot be matched with the direct recruits at all because either the seniority of both the promotees against the direct recruits will be depressed or the seniority of the direct recruits would get depressed by a junior ineligible, unqualified officer who would be gaining against them seniority from the date when he was not so qualified or eligible. The Explanation III is a protective provision preserving the interest of those who are deprived of a fair consideration at the time when they had a right to be considered. It is not a provision rewarding those who are ineligible and unqualified to be considered for promotion against those who are eligible and qualified."
As already noticed, when Sardar Ahmad Zia was ultimately promoted in 1981, the Government had to exercise its extraordinary powers under rule 13 of the Provincial Civil Service (Executive Branch)
Rules to relax the rule with regard to academic qualification. This relaxation could not have retrospective effect in order to make him eligible for promotion from a back date when the Tehsildars juniors to him were promoted.
7. The learned Tribunal has referred to the cases of Ch. Nasrullah Khan, Sh. Rehmat Ullah, Kh. Azhar Hussain, Muhammad Ashraf Cheema and Muhammad Afzal who were promoted alongwith the appellants in 1971 in relaxation of rule 7. It is merely a presumption that if Sardar Ahmad Zia had also been approved for promotion by the Punjab Public Service Commission in 1970, the Government would have relaxed the relevant rule in his case as well. It is to be noticed that the decision of the Government to relax or not relax a particular rule in the case of a civil servant is more often than not subjective in nature and in making its decisions it has to take into account apart from the overriding consideration of undue hardship to the officer, many factors such as, exigencies of public service at particular point of time, the past performance of the officer concerned, the other qualifications possessed by him and the effect that relaxation may have on the rights of other civil servants. It is, therefore, only a conjecture that the Government would have relaxed the relevant rule in the case of Sardar Ahmad Zia also as it had done in the case of certain other officers.
8. Since Sardar Ahmad Zia was not qualified for promotion at the time when the Tehsildars junior to him were promoted to the Provincial Civil Service (Executive Branch), the learned Tribunal erred in law in directing that he should be shown senior to them. The appeal is accepted and the order of the learned Tribunal is set aside. There will be no order as to costs.