1. ORDER S. A. Mahmood (Chairman).--This appeal under section 8 (1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, by Mr. Mohd. Sharif Ahmed, appellant, is directed against the seniority list of permanent/ officiation Executive Engineers of the Communications & Works Department of the present Punjab Province as on 31-12-1972, gazetted on 30-3-1973, in which the appellant is shown at serial No. 45, while respondents 2--16 are shown at serial Nos. 39, 42, 43, 44, 9, 10, 3, 8, 13, 17, 20, 24, 25, 26 and 40 respectively. The appellant in this appeal prays as follows:-- (1)
2. That the impugned seniority list (Annexure A) may be set aside; (2) That the appellant may be declared senior to the respondents 2--16, as Officiating Executive Engineer; (3) That in order to regulate seniority of the appellant vis-a-vis respondents 2--16, respondent No. 1 may be directed to issue orders of proforma promotion of the appellant as Officiating Executive Engineer from the date of promotion of his next below juniors respondents 6 and 7, who were promoted without considering the case of the appellant for promotion ; (4)That respondent No. 1 may be directed to finalise the case of absorption of T. A. Es./Assistant Engineers in PSEI (Junior) on the basis of integrated seniority list (Annexures E and F), and to absorb the appellant according to his seniority in that list; (5)That the names of respondents 2 and 8--16, who belong to a distinct and a separate cadre of Civil Engineers, may be ordered to be deleted from the impugned seniority list ; (6)That as a consequential relief, respondent No. 1 may be further directed to promote the appellant as Superintending Engineer from thtf date from which his junior respondents 6 and 7 were promoted as such ; (7)That the appellant be granted such other relief/reliefs, to which he is found entitled by this Tribunal ; and (8) That the appellant may be awarded costs of the appeal. The appellant is represented by Mr. Fazal Karim Qureshi, Advocate. No one appears on behalf of the Secretary to Government of the Punjab in the Communications and Works Department of the present Punjab Province, respondent No. 1, which is unfortunate. Mr. D. M. Awan, Advocate, appears for respondents Nos. 2 and 6--16. Out of the respondents/ Messrs Nafees Akhtar Ansari and Sardar Ghulam Jaffar Khan, respondents 6 and 9 are only present in person. The seniority in dispute in this appeal is the rank of the Officiating Executive Engineer, which seniority has to be determined under sub-rule (2) of rule 15 of the West Pakistan Service of Civil Engineers (B&R) (Class I) Rules, 1967, read with Explanations I to III. By the order of 15th August 1953, the appellant was appointed as a Temporary Assistant Engineer in the B&R Branch of the P. W. D. of the former Punjab Province, and he took over on 19-8-1953. Though promoted as Officiating Executive Engineer from 9-12-1959, he was reverted from 11- 11-1960 and was repromoted as Officiating Executive Engineer by order of 27th February 1962. He took over on 6-3-1962. In relation to this reversion and repromotion, the appellant states in para. 2 of the grounds of appeal that he was reverted to the post of Temporary Assistant Engineer by the respondent No. l,vide his order dated 12-11-1960, due to the fact that some T. A. Es. senior to him who were not previously promoted were approved by the Public Service Commission of the appellant and were promoted as Officiating Executive Engineers. The name of the appellant wasnever dropped by the Public Service Commission. Subsequently when appellant's juniors were promoted as Officiating Executive Engineer and it was pointed out to the Government that the name of the appellant had been left out through an oversight, he was again promoted as Officiating Executive Engineer by the Chief Engineer, West Paksistan's orders dated 27-2-1962. Since then the appellant is continuing as Officiating Executive Engineer. This averment is admitted in the written statement filed by respondent No. 1. Thus the appellant claims that he had not been superseded in being promoted as Officiating Executive Engineer. By the notification of 20th February 1968, he was absorbed in Class II Temporary and by the notification of 25th March 1969, he was confirmed in Class II against a pre-1963 vacancy under rule 8 (a) (i) of the West Pakistan Service of Civil Engineers (B & R) (Class II) Rules, 1967, with the approval of the Public Service Commission. In the same notification, Mr. Khushi Muhammad, respondent No. 3, was similarly comfirmed w. e. f. 23-9-1953. If appellant has not yet been inducted into Class I (Jr.) under the Rules, though he and some of the respondents have been upgraded in status to Class I under the general notification of 22- 7-1971. Mr. Hassan Bahadur, respondent No. 2 was recruited as a Temporary Engineer in the Electrical and Mechanical Branch of the P. W. D. of the former State of Bahawalpur from 18-3-1955. The Electrical and Mechanical and Civil Engineers formed a joint cadre with the Civil Engineers in the Bahawalpur State. He was at the time of integration a T.A.E. and has not absorbed in Class II so far. His date of continuous appointment as Officiating Executive Engineer is 17-2-1962. Mr. Khushi Muhammad, respondent No. 3 was recruited as T. A. E. in the B&R Branch of the P. W. D. of the former Punjab Province from 23rd September 1953. He was absorbed in Class II Temporary by notification of 20th February 1968, and was confirmed in Class II against a pre-1963 vacancy with the approval of the Public Service Commission under rule 8 (a) (ii) of Class II Rules, 1967 by notification of 25th March 1969. His status has been raised to Class I, but he has not been formally inducted into Class I (Jr.) under the Rules. He was promoted as Officiating Executive Engineer from 20th February 1962. Mr. Muhammad Siddique, respondent No. 4, was recruited as a T.A.E. in the B&R Branch of the P. W. D. of the former Punjab Province from 22- 9-1953. He has not yet been absorbed in Class II on a regular basis. His status has been upgraded to Class I by the general notification of 22-7-1971. He was promoted as Officiating Executive Engineer from 24-2- 1962. Mr. Muhammad Aslam, respondent No. 5, was appointed as T.A E. in the B&R Branch of the P.
3. W. D. of the former Punjab Province from 8-5-1954. He has not yet been confirmed in Class II nor has been promoted to Class I (Jr.) though his status has been raised to Class I by the general notification of 22-7-1971. He was promoted as Officiating Executive Engineer from 5-3-1962. Mr. Nafees Akhtar Ansari, was recruited as an Apprentice Engineer in the P. W. D. of the former Bahawalpur State from 15-11-1953 and was appointed on promotion as Assistant Engineer in Class II in the State from 15-11-1954. Thus, he became an Assistant Engineer in the State having been appointed against a substantive vacancy prior to integration. He had to be integrated as Assistant Engineer alongwi h the Assistant Engineers of the former Punjab Province under para. 4 read with para. I6 of the Integration Circular. He has been inducted into Class I (Junior) against a pre- 1963 vacancy by notification dated 5-4-1969, but no date of promotion to Class I has yet been assigned to him. He was promoted as Officiating Executive Engineer from 17-2-1959, and he has been further promoted as Superintending Engineer in ad hoc capacity w. e. f. 23-1-1973. Mr. Muhammad Naeem, respondent No. 7, was recruited as Temporary Engineer in the P. W. D. of the former Bahawalpur State from 14-4-1950, and was appointed on probation as Assistant Engineer in Class II in the State from 1-3-1955 for two years. He was promoted as Officiating Executive Engineer w. e. f. 13-2-1959, and has been inducted into Class I (Jr.) as Assistant Executive Engineer against a pre-1963 vacancy under rule 8 of the Class I Rules, 1967, by notification of 25-6-1970. He has been further promoted as Superintending Engineer in an ad hoc capacity, and he took over on 29-1-1973. The respondents Nos. 3 to 7 were recruited as Civil Engineers in the B & R Branch of the P. W. D. of the former Province of the Punjab and Bahawalpur State. While in Bahawalpur State, respondents 2, 6 and 7 belonged to the one and the same cadre of Civil Engineers-cwm-Electrical and Mechanical Engineers, respondents 3 to 5 belonged to a separate cadre of Civil Engineers in the P. W. D. of the former Punjab Province from the Electrical and Mechanical Engineers, who were treated as a separate cadre and were known as Specialist Officers. On integration, respondent No. 2 had to be integrated alongwith Temporary Assistant Engineers of the Punjab Province, while respondents 6 and 7 had to be integrated with the Assistant Engineers in Class II of the former Punjab Province. On the enforcement of the West Pakistan Service of Civil Engineers (B & R) (Class II) Rules, 1967, those who were appointed against substantive vacancies in Class II became members of Class II service under Rule 4 (1) {a), while others who were to be absorbed under these Rules were to become members of the Service under Rule 4(1) (b). As such, Messrs Nafees Akhtar Ansari and Muhammad Naeem, respondents 6 and,7 fell under the category of officers who were members of Class II Service on the enforcement of Rules under Rule 4(1) (a), and they were senior to all those who became members of the service many years later under rule 4(1) (b). We have held that those who were appointed against substantive vacancies in Class II before the enforcement of the Rules were senior on general principles to whose who became members of Class II Service many years later under Rule 4 (1) (b). This conclusion we have arrived at on the general principles that those who are members of the service later will be senior to the latter. This view is consistent with the equitable principle laid down by the Supreme Court that seniority in the absence of a common rule, as in the present case, mustL be determined by the date of actual induction into the grade.
4. Therefore,\ we hold that Mr. Nafees Akhtar Ansari and Mr. Muhammad Naeem were senior to the appellant in Class II. It may be mentioned that Mr. Muhammad Naeem became T. E. earlier than the appellant, since this respondent was appointed as Temporary Engineer on 14-4-1950, while the appellant was appointed as T.A.E. on 15-8-1953. Since M/s. Nafees Akhtar Ansari and Muhammad Naeem respondents 6 and 7 were senior in Class II to the appellant, they are entitled to earlier absorption in Class I (Junior) and maintain their seniority as Officiating Executive Engineer, since they were not superseded by the appellant. Their dates of promotion as Officiating Executive Engineer being earlier than the date of promotion of the appellant, the latter cannot be declared senior to them as Officiating Executive Engineer at present nor has the appellant made out a case of supersession of these respondents, so that the appellant may be declared senior to them by the operation of Explanations I and III to sub-rule (2) of rule 15. The dates of appointment as T.A E. of respondents 3 to 5 and as T. E, of respondent 2, are later than the date of appointment of appellant as T.A.E. In case of Mr. Hassan Bahadur, respondent 2, he was to be integrated with T.A.E.'s of the former Punjab Province, and was actually integrated with the Electrical and Mechanical Engineers of the former Punjab Province. He has .not yet been absorbed in Class II or Class I (Jr.) Mr. Khushi Muhammad, respondent No. 3, has been confirmed in Class II w. e. f. 23- 9-1953, as in the case of the appellant, against a pre-1963 vacancy after promulgation of the Rubs. Since their dates of appointment as T.A.E. or T. E. are later than the date of appointment of the appellant, the appellant is to be absorbed earlier in Class II vacancy occurring on the basis of seniority and to be promoted earlier to Class I (J.), other things being equal. It is his seniority in Class I (Jr.) which will determine his seniority as Officiating Executive Engineer by reason of the operation of Explanations I and III of sub-rule (2) of rule 15 qua these respondents. We may mention that though the appellant was promoted later as Officiating Executive Engineer, he does not appear to have been superseded by any of these respondents in being promoted as Officiating Executive Engineer. The appellant if senior in Class I (Jr.) to these respondents, will remain senior to them as Officiating Executive Engineer* The remaining respondents 8 to I6 were recruited as Electrical and Mechanical Engineers in the B & R^Branch of the former Punjab Province and joined as TAE on 28-11-1951, 11-6 1952, 13-2- 1954, 15-8-1954, 30-1-1954 26- 8-1955, 22-9-1955, 8-8-1955, and 23-11-1955 respectively. They were treated as Specialist Officers belonging to separate cadre from the cadre of Civil Engineers, but it was decided to merge them with the Civil Engineers, and merger was brought about by the West Pakistan Service of Civil Engineers (B & R) (Class I) of Class II Rules, 1967, as has been held by the High Court in , decided on 27-11-1972, and by the Letters Patent Bench on an appeal against the dismissal of the writ petition filed by Mr. Hanif and others as , decided on 3-1-1973, and by us in several cases. The learned counsel for the appellant does not challenge the validity of the merger, so that the piayer that the names of Electrical and Mechanical Engineers who do not belong to the Service of Civil Engineers be deleted from the seniority list, s not pressed before us. The meiger of the E and M Engineers with the ;Civil Engineers has been brought about both in fact as well as in law, and ^his is not disputed in the present case. The learned counsel for the appellant contends that admitting that the merger had taken place the appellant is senior to respondents 8 to I6, but this contention is not well founded in respect of respondents 8 and 9, who were appointed as TAE from earlier dates, namely 28-11-1951 and 11-6-1952. These respondents are entitled to remain senior to the appellant by reason of earlier dates of appointment as TAE and in Class II in which they have been absorbed and in Class I (Jr.) to which they have to be promoted. Other things being equal, they would remain senior to the appellant as Officiating Executive Engineer. Their dates of appointment as Officiating Executive Engineer being earlier than the date of promotion of the appellant, they are entitled to rank senior to the appellant under sub-rule (2) of rule 15 of Class I Rules, 1967. The dates of promotion of respondents 10--16 as Officiating Executive Engineer are earlier than the date of promotion of the appellant. Their dates of promotion are 21-9-1959, 21-9- 1959, 16-11-1959, 11-1-1960, 23-5-1960, and 14-2-1962 respectively. It may be explained here that date 11-1-1960 is a date assigned to Mr. Muhammad Shafique, respondent No. 13, who were actually promoted on 6-3-1961. As their dates of promotion as Officiating Executive Engineer are earlier, they are provisionally senior to the appellant as Officiating Executive Engineer by the operation of sub- rule (2) of rule 15 itsellf, but since their dates of absorption in Class II and promotion to Class I (Jr.) in accordance with their seniority has yet to be worked out and are likely to be later than that of the appellant, the appellant if senior to them in Class I (Jr.) will retain his seniority as Officiating Executive Engineer by the operation of Explanations I and III to sub-rule (2) of Rule 15 of the Class I Rules, 1967. It may be mentioned here that respondents 11 and l2 have been promoted to Class I but no date of promotion has yet been assigned to them, and it is not even indicated whether they are promoted to Class I (Senior) or Class I (Junior), We since they have been promoted to Class I after the promulgation of the Rules, their promotion and induction into Class I should have been ordered under the Rules in accordance with their basic seniority, as required by the Rules. The absorption of the above respondents and the appellant in Class II and in Class I (Jr.) should have taken place long ago, but we are surprised to find that this obligation has not been discharged. We direct that the merger of Electrical and Mechanical with the Civil Engineers having been brought about under the rules into Class II and Class I (Ir.) so that their inter se seniority can be finally determined in Class I (Jr.) under sub-rule (2) of Rule 15, read with the explanations. We order as above and leave the parties'to bear their own costs. The security deposit made by the appellant shall be refunded to him.