1. ORDER S. A. Mahmood (Chairman).--By this appeal under section 8(1) of the Punjab Civil Services Appellate Tribunals Ordinance, 1970, Mr. Saeed Ahmad Sh., appellant prays as follows -- (1) That the impugned seniority list (Annexure *A') notified on 28th February, 1973 and gazetted on 30-3-1973 of Permanent/offg. XEN, may be set aside ; (2) that the appellant be declared senior to respondents No. 2, 3 and l2 to 14 as Offg. XEN; (3) that in order to regulate the seniority of the appellant vis-a-vis respondents No. 2 to 14, the respondent No. 1 may be directed to issue orders of pro forma promotion of the appellant as officiating X6N from the date his next juniors, i. e. respondents Nos. 2 and 3 were promoted without considering the appellant ; (4) that the respondent No. 1 may be directed to finalize the case of absorption of the T. A. Es/Assistant Engineers in P. S. E. Class I (Junior) on the basis of integrated seniority lists (Annexures B&C) and to absorb the appellant according to his seniority in that list ; (5) that respondents Nos. 4 to 11 who belong to a distinct and separate E&M Engineering Cadre and do not belong to the Service of Civil Engineers be deleted from the impugned seniority list, or alternatively the appellant may be declared senior to them ; (6) that as a consequential relief, respondent No. 1 may be further directed to promote the appellant as S. E. from the same date from which his juniors, i. e. respondents Nos. 2 and 3 have been promoted as such and ; (7) that the appellant may be given such other relief/reliefs to which he may be found entitled. The appellant is represented by Mr. Masud Ahmed Riaz, Advocate, Mr. Ulfat Ali, Assistant Advocate appears on behalf of respondent No. 1. Out of respondents Nos. 2 to 14, respondents No. 2, 5, 7 and 14 are only present. The remaining respondents are absent. Ex parte against them. Mr. Saeed Ahmad Sh., appellant, was appointed as a temporary Assistant Engineer in the B&R Branch of the P W D of the former Punjab from 10-10-52.* He was promoted as officiating XEN from 25-11-61, but has not yet been confirmed in this rank. After the promulgation of the West Pakistan Service of Civil Engineers (B & R) (Class II) Rules, 1967 (hereinafter called the Class II Rules), this appellant was absorbed in Class II Temporary by notification of 20-2-1968. By another notification of 25-3-69, he was confirmed in Class II w. e. f. 1010-52 against a pre-1963 vacancy under rule 8 of the Class II Rules. Though he was not regularly appointed to or absorbed in Class I, his status was raised to Class I by the general notification of 22-7-71, which raised the status of all graduate Engineers serving in the department to Class I. Mr. Nafis Akhtar Ansari, respondent 2, was appointed as an Apprentice Engineer in the P W D of the former Bahawalpur State on 15-11-53 and was appointed on probation as Assistant Engineer on 15-11-54, which is the date from which he claims to have been confirmed in the State. He has shown as a separate list of Glass II officers issued in 1972, and the latest seniority list of 28th February 1973 wherein he has been shown as having been appointed to class II w. e. f. 15-11-54. He was promoted as officiating XEN by the West Pakistan Government and took over on 17-2-59. With the approval of the PSC he was promoted to class I (Junior) as. Assistant XEN w. e. f. 5-4-1969 under rule 8 of the West Pakistan Service of Civil Engneers (B & R) (Class I)
2. Rules 1967 (hereinafter called the Class I Rules), against a pre-1963 vacancy. He was further promoted in ad hoc capacity as S E and took over on 23-1-1973. Mr. Muhammad Naeem, respondent No. 3 joined the P W D of the former Bahawalpur State from 14-4-50 as a Temporary Eagineer. He was placed on probation as Assistant Engineer for two years w. e. f. 1-3-55, and is stated to have been confirmed in Class II from the same date by the State. He was promoted as officiating XEN w.ef. 13-2-59 by the West Pakistan Government with the approval of the P. S. C., he was promoted to Class t (Junior) as Assistant XEN against a pre-1963 vacancy under rule 8 of the Class I Rules by notification dated 25-6-70. He has further been promoted as S E in ad hoc capacity, and he took over on 29-1-1973. It will be noticed from the above particulars that while respondents Nos. 2 and 3 became Assistant Engineers against substantive vacancies before integration, the appellant was not absorbed until 20-2-68 in Class II (Temporary), and was confirmed vide order dated 25-3-69. Therefore, the appellant became a member of Class II service much later than respondents Nos. 2 and 3. On integration, while respondents Nos 2 and 3 had to be integrated into Group sub-cadre *C' as Assistant Engineer in Class II, the appellant was not a member of Class II. but was a Temporary Assistant Engineer. On the operation of the Class II Rules, the case of respondents 2 and 3 fell under rule 4(l)(a), while that of the appellant fell under rule 4(1)
3. (b). In these circumstances, as held by us in many other cases, we cannot declare the appellant to be senior to these two respondents. It may also te mentioned that while respondents Nos. 2 and 3 have actually been promoted to Class I (Junior) with the approval of P. S. C. against pre-1963 vacancies, the appellant's status has only been raised to Class I, but he has not yet been regularly absorbed in Class I (Junior) A under the rules. The date of continuous appointment of respondents No. 2 and 3 as officiating XEN is earlier than the date of continuous appointment of the appellant as offg. XEN. As such, under sub-rule (2) of rule 15 of the Class I Rules, these respondents are entitled to rank senior to the appellant as offg. XEN. The Explanations I and III do not help the appellant at all.
4. As such! the appellant's appeal against these respondents is hereby dismissed. The grantl of pro forma promotion is within the discretion of the competent authority,L but since respondents Nos. 2 and 3 were not junior to the appellant, there isj no merit in the appellant's prayer to be granted p'o forma promotion from the date of promotion of respondents Nos. 2 and 3 as Offg. XEN. As against respondents Nos. 4 to 11, who were originally recruited as E/M Engineers in the B&R Branch of the P W D of the former Punjab province, and were treated as specialist officers and as members of a different cadre than the cadre of Civil Engineers, the appellant claims not only that they should not have been grouped in the impugned seniority list, but he also claims seniority over them. While the date of appointment of the appellant as Temporary Assistant Engineer is 10-10-1952, the dates of appointment of respondents Nos. 4 to 11 as Temporary Assistant Engineers are 28-11-51, 11-6-52, 13- 2-54, 15-2-54, 18-10-54, 26-8-55, 22-9-55 and 8-8-55 respectively. Therefore, respondents Nos. 4 and 5 were recruited earlier as Temporary Assistant Engineers than the appellant, but the remaining respondents were recruited later. It is on this ground that the appellant claims before us seniority over respondents No. 6 to 11 contending that as they were junior to the appellant in Class II or as Temporary Assistant Engineer, they are junior to the appellant, as Offg. XEN, since they have not superseded the appellant at any stage. Seniority is also claimed on behalf of the appellant over respondents Nos. 6, 9, 10 and 11 on the ground that while they have not yet been inducted into or absorbed in Class II under the Class II Rules, the appellant has been so absorbed and is confirmed in Class II. With regard to the question of merger of E/M Engineers with the Civil Engineers of the former PWD, the objection is that no formal notification to that effect having issued they continue to belong to a different cadre of the service. It is true that those appointed as Temporary Assistant Engineers in the E/M Wing of the BdtR Branch of the PWD in the former Punjab Province initially treated as Specialist Officers as belonging to a separate cadre than the cadre of Civil Engineers, but before the Class I and Class II Rules were promulgated, it was decided to merge the Civil Engineers with the E/M Engineers and these rules were so drafted as to be applicable to them both. The effect of these Rules was to merge the two cadres into one cadre both in fact as well as in law. lt has been so held by us in several cases and by the High Court in decided on 27-11-72 and in decided on 10-1-73. The learned Judges of the High Court came to the conclusion that the merger of the two cadres had taken place both in fact as well as in law by the operation of the rules.
5. Though the decision of the High Court does not operate as res judicata against the appellant, since he was not a party to the writ petition and the Letters Patent Appeal, but the decision of the High Court on the question of legal effect of the rules has great pursuasive force. For the reasons stated by us in detail of the case of Mr. Muhammad Aftab Siddique () decided on 28-8-73 and of Mr. Khushi Muhammad () decided on 10-9-73 we hold that there is no force in the contention of the appellant's counsel that a merger of the Civil Engineers with the| E/M Engineers of the C & W D of the present Punjab Province has not been brought about. There is, therefore, no force in the claim of the appellant that the E/M Engineers could not be included in the impugned seniorit> list, alongwith the Civil Engineers of the department. The appellant cannot be declared senior to respondents Nos. 4 and 5 as the date of their appointment as Temporary Assistant Engineer is earlier, and this is the date which they are entitled to count for purposes of seniority on being absorbed in Class II under the Class II Rules. Both these respondents have also been promoted to Class I with the approval of the P. S. C., vide notifications dated 5-4-69 and 5-8-68, respectively.
6. Messrs Manzoor Ahmed and Abdur Rehman Baluch, respondents Nos. 7 and 8 were appointed to Class I by notification of 5-4-69 and 28-4-69 respectively. While they have become members of Class I Service governed by Class I Rules in the matter of seniority, the appellant has not yet been absorbed in Class I Service as required by the Rules. Even if the appellant be treated as a member of the class I Service by reason of his status having been raised to Class I, the dates of notification of appointment of respondents Nos. 7 and 8 to Class I are earlier than the date of notification of the appellant. It is argued on behalf of the appellant that the appointment of respondents Nos. 7 and 8 to Class I is arbitrary in so far as it is not based on inter se seniority of the E/M Engineers qua the Civil Engineers as required by the rules, but this is a matter for the Government to go into and examine. The dates of continuous appointment of respondents Nos. 7 and 8 are earlier than the date of continuous appointment of the appellant as Offg. XEN. Their inter se seniority in this rank is governed by sub-rule (2) of rule 15 of the Class I Rules and Explanations I and III thereto. Since respondents 7 and 8 have become members of Class I Service by a regular notification of earlier date, the appellant has been upgraded by a later notification, the latter cannot be declared senior to these respondents. While the appellant has been confirmed in Class II, Messrs Muhammad Ashraf Khan, Muhammad Shafique, S. H. Zaidi and Akhtar Rashid Toosi, respondents 6, 9, 10 and 11 have not yet been formaly inducted into Class If, whether temporary or permanent, by any notification. We are surprised that ( this has not yet happened, because on the promulgation of the Class II Rules it was necessary that those serving in the department and not considered unsuitable for appointment as Assistant Engineers were to be absorbed in Class II either under rule 7, 8, 9 or 10 of the Class II Rules. This matter should therefore, be looked into by the competent authority. Their absorption under one of these rules would depend upon their basic seniority as Temporary Assistant Engineer and on all other relevant factors and the dates of occurrence of the vacancies. It would be on the basis of their seniority in Class II that these respondents would be entitled to promotion to Class I (Jr.) as is due to them, in accordance with their service record and the rules.
7. The same would apply to the case of the appellant. Since at present neither the appellant nor the respondents Nos. 6, 9, 10 and 11 have been appointed to Class I (Junior) or assigned dates of appointment, Explanations I and III to rule 15(2) of the Class I Rules cannot operate for the fixation of their inter se seniority as members of the service. It may be mentioned here that the dates of continuous appointment of repondents Nos. 6, 9, 10 and 11 as offg. XEN are earlier. When the dates of promotion to the service have been assigned, it will have to be seen whether the operation of the rules affects the effect of sub-rule (2) of rule 15. The date of continuous appointment of Mr. Abid Ali Sherwany, respondent No. 14, as Temporary Assistant Engineer is earlier than the date of appointment of the appellant as Temporary Assistant Engineer. As such, other things being equal, he will be senior to the appellant as Temporary Assistant Engineer by the operation of sub-rule (3) of rule 8 but his date of continuous appointment as offg. XEN is later than the date of continuous appointment of the appellant. The operation of sub-rule (2) of rule 15 read with Explanations I and III will determine their inter se seniority as offg. XEN. In their case also the dates of continuous appointment to Class I (Jr.) have not yet been notified. Since this is material to the question their inter se seniority as offg. XEN, these dates be assigned by the competent authority as early as possible. We may mention here that we have held in the appeal by Mr. Abid Ali Sherwany decided on 6-11-73, that he was not superseded by Ch. Abdul Latif and Mr. Ehsan Elahi Jauhri, the present respondents Nos. l2 and 13. The dates of continuous appointment of Mr. Abdul Latif Ch. and Mr. Ehsan Elahi Jauhri as Temporary Assistant Engineer are later than the date of appointment of the appellant as Temporary Assistant Engineer. As such they are junior to the appellant in Class II by operation of Class II Rules. Their date of continuous appointment as Offg. XEN is later than the date of continuous appointment of the appellant. As such, by the operation of rule 15(2) of the Class I Rules, the appellant is entitled to be senior to respondents Nos. l2 and 13 and we declare him to be senior to them. The learned counsel for the appellant has raised the same grievance as was raised by Mr. Ehsan Elahi Jauhri in , decided on 27- 11-73 in which we have already held that the question of grant of proforma promotion is in the discretion of the Government and is also provided for under sub-rule (2) of rule 15 of the Class I Rules. We have no doubt that this question will be examined and decided by the Government. We decide the case as above, declaring the appellant to be senior to respondents Nos. l2 and 13, Messrs Abdul Latif Ch. and Ehsan Elahi Jauhri only. The parties are left to bear their own costs. The security deposited by the appeallant shall be refunded to him. Ashpaq Ali Khan (Member).--I agree with the operative part of the order made by the learned Chairman and recommend that our observations in respect of grant of pro forma promotion to officers with a longer standing in the department may be taken up by Government in their discretion, and cases of hardship, such hardship being judged again by Government in their wisdom, to be considered for grant of such relief as may be deemed admissible. Our observations in the case of Mr. Abid Ali Sherwany in this regard may be taken into account.