1. ORDER S. A. Mahmood, (Chairman).--By this appeal under section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordintnce, 1970 Mr. Saqib All, appellant, who is now Assistant Professor, prays t
(a) that the decisions of the Government dated 13-6-72 and 7-7-72 may be set aside. (b) that the confirmation of the appellant may be ante-dated to 16-11-51 instead of 16-11-52 ; (c) that the promotion of the appellant from Class II to P. E. S. Class I (Junior) as Assistant Professor may be ordered to take efieot from 1-7-58 in place of 1-7-62; (d) that the seniority of the appellant may be duly corrected, and the appellant placed at serial number 68 instead of 137 below Mr. Nasiaa Ahmad Khan, Assistant Professor in the provisional grandation list of Assistant Professors (Collegiate Branch) (Men's section) as on 1-4-72, because Mr. Nasim Ahmad Khan, Assistant Professor joined as Junior Lecturer one day earlier than the appellant; and (e) that the appellant may be ordered to be paid arrears of pay and other reliefs due to nim. The appellant appears in person. Mr. Abdul Jalil Assistant appears on behalf of the Secretary to Government of the Punjab Education Department, respondent No. 1. Out of respondents 2 to 7, no one has appeared before us.
2. Ex parte against them. The appellant was appointed as officiating Lecturer in Chemistry in Government College, Lahore in the Subordinate Education Service, A. V. SectioD, by order of 9th November 1950 and joined that post on 16-11-50. He claims seniority as Lecturer in Class il w.e.f, this date. He was transferred to the Government College, Lyallpur from 10-10-51 and then transferred by order of 28th May 1952, to D'Montmorency College, Sargodha as officiating Lecturer vice Mr. Muhammad Tahir, who was transferred and his 1 en was retained. He took over at Sargodha on 5- 6-52. He was appointed oa 14-10-52 as officiating Lecturer at D'Montmorency College Sargodha against a permanent post w.e.f. 16-11-50. He was appointed in a substantive capacity on probation and confirmed from these two dates and bis seniority as Junior Lecturer has been determined from 16-11-53, the date of expiry of the period of probation under Rule 8 of the Punjab Subordinate Education Service Rules, 1937 w. e. f. 14-10-1955 the post of Junior Lecturer became special gazetted in Class II. The appellant was promoted to Class 1 (Junior) officiating Assistant Professor from the same date. His seniority has been counted from this date under rule 10.1(h) of the West Pakistan Education Service Class I (Collegiate Branch) (Men's Section) Rules, 1962, on the basis of the date of continuous appointment to the grade. He remains an Assistant Professor and has just been transferred to the Government College, Faridabad, District Lyallpur. ln the seniority list of Class 11 issued on 1-7-61 as on 1-1*67, the appellant has been shovn at serial number 51 on the basis of his date of confirmation after the expiry of period of probation i. e. from 16-11-53 but he claims that he should be shown at serial number 15 on the basis of date of confirmation by treating him on probation from 16-11-50. The appellant has been representing against the fixation of his seniority ln Class II. On 6-4-72 a seniority list of Actant Professors as on 1-4-72 was Issued, The appellant was shown at serial number 137 therein. He claims that he should be shown at serial number 68 on the basis of his revised aenioirty in Class II. In respect of the representations of the appellant claiming higher seniority in Class II and Class I (Junior), the appellant was informed by decision of the Government dated 13-5-72 that his claim to seniority had heen thoroughly examined as he was appointed as temporary lecturer ln officiating capacity w. e. f. I6-11-50 and was actually selected and approved by the commissioner in the said grade w. e. f. 16-11-62 on which date he was placed on probation, and thereafter was confirmed w.e.f. 16-11-53, his seniority had to be determined from the date of actual selection by the Commission and the merit assigned to him and not from the date of officiating in a grade. His seniority had been correctly determined w. e. f. 16-11-50. Reference in this order to the P. S. C. having selected him from 16-11-52, and to have laid down an order of merit is factually incorrect. There was no question of referring the case of the appellant to the P. S. C. for approval to his appointment ia S. G. S. which was a non-gazetted rank. The appellant was further informed by letter of 7-7-72 of respondent No. 1 that his case had been re-examined and it had been decided that the decision already communi:ated to him on 13-5-72 could not be changed. He was further Informed that if he was still not satisfied with the Government's decision he may make a petition before this Tribunal. It was then that the appellant moved this Tribunal and instituted this appeal on 26-9-72. The above facts clearly show that the appellant was placed on probation w. e. f. 16-11-52 and in terms of rule 8 of the Punjab Subordinate Education Service Rules, 1937 his seniority had to be determined by the date of confirmation which for the purposes oi the rule shall be the day following the expiry of the period of probation. Therefore, his seniority has been correctly determined from the date of confirmation from 16-11-53. The appellant, however, contends that he should be treated as having been placed on probation w. e. f. 16-11-50 when he was appointed as officiating Lecturer against an existing vacancy. In this connection, he also contends that as the respondents and other Lecturers were confirmed from the date of expiry of one year from the date of appointment, he should similarly have been confirmed and be deemed to have been confirmed from 16-11-51. He also relies on the orders of his appointment against a permanent post on 14-10-52 w. e. f. 16-11-50. In this connection, we have been shown the relevant file in which the case of the appellant and many others was put up for orders of the competent authority for placing them on probation and for fixing the date from which they should be confirmed. The case of the appellant figured at serial number 3 of these persons. In this office note it was mentioned that he had joined service on 16-11-50 and his first report was satisfactory but his second report for the year 1951-52 was below mark. In the last Batch of confirmations, he was not placed on probation because his appointment had not by then been approved by the University.
3. He had since been approved by the University. In October 1952, the appellant had requested for his confirmation but in view of his poor report for the year 1951-52 he was put on special report for 1952-53 and that he could not be put on probation until the following year. His report for the 1952- 53 was good. If approved, he may then be placed on probation. Orders were solicited as to whether he should be placed on probation from the date he joined service and he be confirmed after one year or from some subsequent date. It was further stated in the note that a permanent vacancy reserved for him during 1950-51 was still available. The competent authority, namely the Director of Public Instruction, ordered on 17-3-54 that he be placed on probation w. e. f. 16-11-52 and confirmed from 16-11-53. Thus a specific order was made on the basis of the character roll of the appellant by which he was placed on probation w. e. f. 16th November 1952, and confirmed from 16-11-53. These dates are conclusive for the determination of his seniority in terms of rule 8 of the Punjab Subordinate Education Ssrvice Rules, 1937. In this connection, reference may also be made to rule 7 of these Rules which provides for probation and confirmation. The case of the appellant was duly considered for being placed on probation and his date of confirmation was determined. It is on the basis of these dates that his seniority has to be determined. The competent authority having decided the date from which he should be placed on probation and the date from which he should be confirmed it is idle for the appellant to contend before us that his date of probation and confirmation should be earlier and should count from the date of expiry of one year after the date of his appointment as Junior Lecturer. For the reasons stated above, we are unable to hold that the appellant should be deemed to have been confirmed w. e. f. 16-11-51 or to order that he should be shown senior in Class II, as claimed by the appellant, by this appeal. Since his seniority in Class I (Junior) is based on his seniority in Class 11, we are unable to declare him senior in Class I (Junior) and to order that he should rank at serial number 68. There being no force in this appeal, it is dismissed with no order as to costs. The security deposited by the appellant shall be refunded to him. 1975 PLC [C.S.T.] 35 [Punjab] Present i S. A. Mahmood, Chairman and Ashfaq AH Khan, Member M. A. AKHWAND versus SECRETARY TO GOVERNMENT, PUNJAB LABOUR DEPARTMENT and 2 othbrs , decided on 15th December 1972. (a) Province of West Pakistan (Dissolution) Order, 1970-- -- --- Art. 17(3)--Safeguard of rights of serving persons on allocation to new Province--Cannot be denied--Benefit of past service towards seniority, held, cannot be denied--Labour Officer/Assistant Director Labour Welfare serving in Quetta Region allocated to Punjab -- Appointment as Labour Officer/Assistant Director Labour Welfare, however, not yet approved by Public Service Commission --Seniority in respective cadre in Punjab, held, to couDt from date of original appointment subject to approval by Public Service Commission. [p. 38M Ch. Mohammad Tufail v. S. E. Headquarters, Irrigation, Bahawalpur fol (b) Civil services-- ----- Promotion--Assignment of date of promotion subsequent to actual promotion -- Not within competence of Government -- Promotion creates right and such right, held, cannot be denied, [p. 38] 1972 PLC 149 and 1972 PLC 188 fol Order S. A.
4. Mahmood (Chairman).--By this appeal under section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, Mr. M. A. Akhwand, appellant who is now posted as Assistant Director, Labour Welfare, Lyallpur prays that the impugned order dated 7-7-72- by respondent No. 2 may be declared illegal and inoperative and that respondents 1 and 2 may be directed to treat the appellant for the purposes of seniority in the relevant cadres as having been promoted as Labour Officer and Assistant Director, Labour Welfare, on the dates on which he actually came to be promoted and started functioning by the application of the Rule of Continuous Officiation to determine appellant's seniority in the various cadres. Mr. M. A. Akhwand, appellant, appears in person. Mr. Muhammad Tufail, Labour Officer (Adrnn.) appears on behalf of the Secretary to Government of the Punjab, Labour Department, and the Director Labour Welfare Punjab, respondents 1 and 2. Mr. Adil Mansoor son of Mr. Muhammad Shah, Assistant Director, Labour Welfare, respondent No. 3, is present on his behalf. The appellant was appointed as Senior Clerk in the Industries Department in November 1957 and was promoted as Assistant in 1959. On 11- 8-60 he was selected and appointed as Assistant Labour Officer in Class III (Non-gazetted) in the Labour Department and was posted at Bahawalpur. It appears from the letter of S & GAD dated 17-1-62 that^on the report of the Provincial Reorganisation Committee ln respect of creation of Regional Sub-Cadres within the existing Provincial Cadres, Government had accepted the proposal and had directed that the question of creation of Regional Sub-Cadres should be examined simultaneously with the creation of new posts and appointments thereto. The existing personnel were required to give their preference for initial allotment to posts allocated in the various Regions which were to eventually constitute the Regional Sub-Cadres to facilitate the process of absorption of staff. It was directed that two preferences should be obtained in each case which may be considered at the time of filling the available posts. In this connection, option was invited from the appellant who gave first option in favour of Multan Region and second option in favour of Quetta Region. Since he could not be accommodated in the Multan Region, he was allocated to the Quetta Region on 15-2- 62 ard posted in that Region as Assistant Labour Officer in Class HI. Thus he became a member of Quetta Regional Sub-Cadre. On 2-7-62 he was promoted with immediate effect to officiate temporarily as Labour Officer, Quetta, in place of Mr. Gul Muhammad until 30th August 1962. His promotion was stated to be purely on temporary basis without prejudicing the rights of others to seniority. Since this was a promotion to Class II, the approval of the Public Service Commission was necessary to his promotion to Class II. This was thus an appointment subject to the approval of the Public Service Commission for a short duration upto the 30th August 1962 and was thus an ad hoc appointment. He was continued as Labour Officer from time to time and was posted against a promotion vacancy in Quetta Region from 2-7-62 and on regular basis frcm 12-S63. He was thus promoted against a regular vacancy but without the West Pakisten Public Service Commission having been accorded approval to his promotion to Class II. He was further promoted as Assistant Director Labour Welfare, Multan, vice Mian Asghar Ali, who had been promoted by notification on 3- 1-67. This promotion was subject to the approval of West Pakistan Public Service Commission and was not to confer any right on him to claim any seniority on this basis. This being a promotion to Class 1, the approval of the Public Service Commission to this promotion was necessary. That approval has not yet been accorded by the Public Service Commission. On the dissolution of One- Unit w. e. f. 1-7-70, there was allocation of the appellant on the basis of his domicile to the Punjab Province by notification of 30th May 1970, in which the appellant was allocated to the new Punjab Province as Assistant Director, Labour Welfare, Lahore. In respect of allocation of persons who were ln the service of Pakistan in connection with the affairs of the Province of West Pakistan it was provided in Article 17(1) of the Province of West Pakistan (Dissolution) Order, 1970, as follows : "Subject to the provisions of this order and any order made under Article 20, every person not being a member of an all Pakistan Service or a civil service of a centre, who would immediately before the appointed day was in the service of Pakistan in connection with the affairs of the Province of West Pakistan, at whatever place he may for the time being be serving, shall be deemed to be serving in connection with the affairs of the new Province, in which such place is situated." Clause 3 of Article 17 of the Dissolution Order further provided that! "every person referred to in clause 1 shall be entitled to the same terms and conditions of service as in respect of remuneration, leave and pension and the same as in respect of disciplinary matters and rights and similar as the changed circumstances may permit as he was entitled to immediately before the appointed day." The provisions in this article of the Dissolution Order, therefore, safeguarded the rights of all those serving in connection with the affairs of West Pakistan and who were allocated to the new Provinces. The appellant justly claims that bis promotion to higher rank could not be ignored though it may have been in Quetta Region and that his terms and conditions of service were protected. He thus claims that he v/as entitled to count his date of continuous appointment as Labour Officer from 2-7-62 and as Assistant Director, Labour Welfare, from 4-1-67. It appears, however, that Mr. Muhammad Shafi, respondent 3, made a representation to the Government on 12-4-71 claiming that the appellant should be refixed in the respective cadre of his home Region on the occurrence of a vacancy in the Multan Region in 1969 and he would thus be a few steps junior to Mr. Muhammad Shafi. ln this connection, he cited the cases of Mr. Fiaz Hameed Niazl. Assistant Director, Mr. Anwar Hussain Sheikh, Shahid Hussain and A. D. Khan, Labour Officer, who were absorbed in the Regions other than Regions of their domicile, and thereafter re-sbifted to their home Region as soon as posts became available for them, and as such their seniority was reckoned w. e. f. the date on which vacancies occurred in the Regions to which they belonged, thus causing no discontent or frustration to those who were senior to them in those Regions, lt was pointed out that a different standard applied in the case of the appellant had resulted in the declaration of so many other officers as junior to him in the cadre of Class I. This representation was accepted by Government which led to the passing of the impugned order dated 7-7-72. That order was made on a reference to the S & GAD and an advice tendered by the S & GAD in this connection. The relevant portion of the impugned order is that S & GAD has advised 'that on reversion to his (appellant) original Region of domicile (Multan Region) he cannot carry his seniority as Labour Officer/Assistant Director, Labour Welfare from the dates of his promotion in Quetta Region. That Department had further advised that his senioiity as Labour Officer/ Assistant Director may be re-determined on the basis of his original seniority ln Multan Region, ln view of this advice, the position of the appellant ln Multan Region, having been examined, it was found that had he not been adjusted in Quetta Region, he would have got promotion as Labour Officer against a promotion vacancy in Multan Region on 1-7-69. Accordingly his seniority in the cadre of Labour Officer was ordered to count from that date, that is 1-7-69. The advice tendered by the S & GAD and the decision in the impugned order that his seniority in the cadre of Labour Officer will count from 1- 7-69 is wholly misconceived. The effect of this order is to deny the benefit of appellant's actual promotion to the rank of Labour Officer though on ad hoc basis. That matter is still sub judice and the approval of the P. S. C. is still not available. In noting the impugned order there is controvention of clause (3) of Article 17 of the Dissolution Order dated 1-7-70, as held by us in the case of Ch. Muhammad Tufail v. S. E. HQRs, Irrigation, Bahawalpur (, decided on 16- 6-72). The rights and Interests of the appellant on being allocated tO| the Province of the Panjab were safeguarded by clause (3) of Article 17 and he has a right to count his previous service in the Quetta Region towards seniority, while serving in the new Province of Punjab on his allocation tc the Punjab Province. On this basis the seniority of the appellant should have been fixed in accordance with the date of his continuous appointment as Labour Officer subject to the approval of the P. S. C. w. e. f. the date of his officiation. If his promotion as Labour Officer in Class II is regularised by the P. S. C. w. e. f. 2-7-62 be will be entitled to count his date of continuous appointment from 2-7-62. If that be not the case, he will be entitled to oount his seniority as Labour Officer from such date from which his appointment to Class II is regularised by the P. S. C. and is notified by the Provincial Government. On the same basis he will be entitled to count his date of continuous appointment in Class I as Assistant Director from such date from which his promotion to Class I is regularised in consultation with the P. S. C. and is notified by the Government. In the above connection, we were also referred to the cases reported as 1972 PLC 149 and 1972 PLC 188. In the first case we held that though Government may have power to assign a date of promotion with retrospective effect, it is not possible to assign a date of promotion with future promotion because rights are created as a result of promotion, and functioning of the officer in a higher rank. Similarly, in the second case we held that the date of promotion assigned to a ministerial official by the Government cannot be later than the dates of actual promotion, since rights accrue on promotion and the particular official cannot be denied the benefits which had accrued to him. It no longer remains within the power of the Government to postpone the date of promotion, lt is pointed out to us that the effect of the Impugned order is to postpone the date of promotion of the appellant as Labour Officer. The contention is well-founded and the date could notl be postponed unless the P. S. C. does not approve of the promotion of theb? appellant to Class II w. e. f 2-7-62 on a consideration of the merits of the| appellant's case for promotion to Class II. The basis on which the impugned order has been made, namely, that the appellant can only count bis seniority in Class II in the Multan Region on the date on which a vacancy was likely to occur in that Region was wholly misconceived and was not based on any rule. In so far as it postponed the date of promotion of the appellant to Class II from the actual date of promotion it could not be made by the Government in case the appointment of tne appellant to Class II is approved by the P. S. C. from 2-7-62. The basis on which postponement of promotion has taken place is not the approval of the P. S. C. but the date of occurrence of a vacancy in Multan Region, which was not a good ground for postponing the date of his actual promotion. Since there has been no fixation of inter se seniority of the appellant qua respondent No. 3, it is not necessary to state his service particulars. The appellant and respondent 3 are now both Assistant Directors in Class I, which Is organised on provincial basis. The cadre of the Service in Class II was Regional and they both belonged to different cadres. Their inter se seniority as Labour Officer does not have to be decided and there is no conflict between them as to seniority ln that rank. We are told that Mr. Muhammad Shafi, respondent has been approved by the P. S. C. for appointment to Class II, but, as stated already, the appellant has not yet been so approved. For the reasons stated above we quash the impugned order of respondent No. 2 dated 7-7-62 and direct that the date of continuous appointment of the appellant as Labour Officer for purposes of seniority shall be the date from which his promotion to Class II is regularised by the P.
5. S. C. and is notified by the Government in due course. We may mention in this connection that in so far as approval to his promotion in Class II has not yet I been accorded by the P. S. C., the case can only be referred to the 1 P. S. C., who will be competent to accord approval to his promotion and regularise his appointment with effect from the date of his officiation or otherwise against vacancies in the Quetta Region, as is justified by the service record of the appellant. It has been objected to on behalf of respondent No. 3 that this Tribunal does not have jurisdiction to decide this appeal in so far as the impugned order is an order of reversion and that the appellant has claimed relief on the basis of promotion to Class II in Quetta Region which is in the Province of Baluchistan.
6. Thus his appeal is liable to be dismissed. We are not inclined to give effect to this objection on the ground that the appellant is an allo- cattee of the Punjab Province and has right of appeal against an order of 17th July 1972, which order is made by the additional Director, Labour Welfare of the Punjab Province. The impugned order is also not an order of reversion but affects the seniority of the appellant in Class II. Therefore an appeal against this order is competent to this Tribunal under section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970. It is also contended that this appeal is not competent as the appellant is not a permanent Government servant within the meaning of clause (c) of section 2 of the Ordinance, but this contention has no force since the appellant is covered by the definition of Government servant. It is also objected on behalf of the respondent No. 3 that persons who are affected by the impugned order not having been impleaded as parties to the appeal this appeal shoold be dismissed, lt will be noticed on the above narration of facts that it was on the representation of respondent No. 3 that the impugned order was made and he has been duly made a party to the appeal. The appellant not having been sjfiown Junior to other persons, he did not have to implead them as parties, nor are they necessary parties to the appeal. An objection Is also raised that Messrs Muhammad Mazhar, Abdul Shakoor and Shaukat Mukhtar being senior to respondent 3 and being affected by the present appeal should have been impleaded as necessary parties. But the dispute in this appeal relates to a matter of seniority in the cadre of Labour Officer, since he has been assigned a future date of promotion than his actual date of promotion. Therefore the three persons referred to above are not necessary parties to the appeal. For the reasons stated above, this appeal succeeds to the above extent. There Is no order as to costs. The security deposit made by the appellant shall be refunded to him.