ORDER Saad Saood Jan (Chairman).--This order deals with eighteen appeals, namely, 7/17, 8/19, 9/8, 10/23, 11/24, 12/18, 13/22, 14/21, 15/9, 16/20. 17/10, 18/11, 19/12, 20/13, 21/15, 22/14, 25/25, and 38/30, all of 1974. These appeals call in question the same seniority list, that is the seniority list of Social Welfare Officers published on 22-2-1974 by the Social Welfare Department of the Punjab Government. Since common questions of law and fact arise in them, they are being disposed of together.
2. To carry out certain urban community development projects and medical social welfare programmes, the Government of West Pakistan in early 1960 created a large number of posts of Social Welfare Officers under the administrative control of the Social Welfare Department.
A set of rules, known as the West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules was formed in 1964 by the Government to govern the conditions and terms of service of those officers.
3. In June, 1963, the Social Welfare Directorate was partially reorganised and the posts of Social Welfare Officers which were intended to be utilized in hospitals were transferred to the administrative control of the Health Department: consequently, the services of some of the officers who were formerly working under the Social Welfare Department were placed at the disposal of the Health Department; the latter department also recruited some more officers to fill the additional appointments. Respondents No. 2 to I6 in (hereinafter referred to as the contesting respondents) are the officers who either were recruited directly by the Health Department or were initially holding appointments under the Social Welfare Department but later transferred to the Health Department.
4. It will perhaps not be out of place to mention here that the grades and the scales of pay of officers in both departments were identical. It was stated before us by the Representative of the Social Welfare Department that the Health Department had framed its own set of rules to govern the terms and conditions of service of the officers working under its administrative control. It will thus appear that there were two separate services of Social Welfare Officers, one operated by the Social Welfare Department and the other by the Health Department.
5. After the dissolution of the Province of West Pakistan, the social welfare services were again reorganized. Consequent upon this reshuffling the the responsibility for social welfare activities in the Province was taken over exclusively by the Social Welfare Department and the posts of the Social Welfare Officers in the Health Department alongwith their incumbents were transferred en bloc to the Social Welfare Department. As a result the contesting respondents became members of the same seivice to which the appellants in these appeals already belonged. '
6. On 20-2-1974 the Directorate of Social Welfare issued a combined seniority list of both categories of officers, that is, those who were already in the service of the Social Welfare Department and those who were transferred from the Health Department consequent upon the second re-organization. In this seniority list the appellants were assigned lower positions than the contesting respondents. Being aggrieved by the said list, they have come to this Tribunal.
7. The case of the appellants mainly is that the criterion for determining seniority of both categories of officers should have been the length of continuous service and since they had received appointments as Social Welfare Officer earlier than the contesting respondents they ought to have been assigned higher positions in the list as compared with the latter.
8. The terms and conditions of service (including those relating -to seniority) of the Social Welfare Officers holding offices under the administrative control of the Social Welfare Department are governed by the West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964. The provisions with respect to seniority are contained in Rule 8 which runs as follows: "8. Seniority.--(1) The seniority inter se of the holders of posts in the various grades thereof shall be determined-- (a) in the case of persons appointed by initial recruitment, in accordance with the order of merit assigned by the Commission; provided that persons selected for posts in an earlier selection shall rank senior to the persons selected in a later selection; and (b) in the case of persons appointed otherwise, with reference to the dates of their continuous appointment therein; provided that if the date of continuous appointment in the case of two or more persons is the same, the older officer, if n?t junior to the younger officer or officers in the next below grade, shall rank senior to the younger officer or officers. Explanation /--If a junior officer in a lower grade is promoted to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade. Explanation II-- If a junior officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently. Explanation III--A junior officer appointed to a higher grade shall be deemed to have superseded a senior officer only if both the junior and the senior officers were considered for the higher grade and the junior officer was appointed in preference to the senior officer. (2) The seniority in the various grades of the posts of the holders appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined-- (a) in case both the officers appointed by initial recruitment and the officer appointed otherwise have been appointed against substantive vacancies, or both have been appointed against temporary vacancies, with reference to the date of appointment to such vacancy in the case of the officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of the officer appointed otherwise; provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment; (b) in case the officer appointed by initial recruitment has been appointed against a substantive vacancy and the officer appointed otherwise has been appointed against a temporary vacancy, the officer appointed by initial recruitment shall rank senior to the officer appointed otherwise; and (c) in case the officer appointed otherwise is appointed against a substantive vacancy and the officer appointed by initial recruitment is appointed against a temporary vacancy, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment. It was stated before us by the representative of the Social Welfare Department that the impugned seniority list has been prepared in accordance with paragraph (a) of sub-rule (1) ibid, that is, on the principle of earlier selection.
9. We do not think that the provision of paragraph (a) of sub-rule (1) ibid, could in terms be applied here. The said paragraph regulates tbe seniority of officers appointed to the < service by initial recruitment only. Hie expression'initial recruitment'has been defined in clause (/) of rule 2 as meaning an appointment made otherwise than by promotion or transfer from another service, department or post. The contesting respondents were already holding offices as Social Welfare Officers under the Health Department Shafi Arshad v. Director,Social Welfare (Saad Saood Jan, Chairman) 1975when their services were placed at the disposal of the Social Welfare Department.
Thus their appointments as Social Welfare Officers under the Social Welfare Department was through transfer from another service and a department, and not by way of initial recruitment within the meaning of clause (/) ibid. The Administrative Department was therefore clearly in error in applying paragraph (a) of rub-rule (1) in fixing the inter &e seniority of the appellants and the contesting respondents.
10. Otherwise, too, to our mind the principle of earlier selection could not furnish a satisfactory and just basis for determining the inter &e seniority of the two set of officers as the incidents of service in the Health Department and in the Social Welfare Department were disparate. Thus, appointments in the Health Department were made on the recommendation of the West Pakistan Public Service Commission, which also fixed the order of seniority among its nominees. On one occasion it so happened that some of the Officers who had been working on ad hoc basis were placed lower in the order of merit by the Commission than some others who were entirely fresh entrants in service. In the case of Social Welfare Department there was some confusion over the legal position whether the recruitment to the posts of Social Welfare Officers was to be made through the Commission or not. Ultimately it was decided that the Commission was not concerned with the said appointments and a Selection Board was constituted by the Government to regularize the appointments of ad hoc officers The Board approved the appointments of a large number of these officers with effect from the very date they started officiating on an ad hoc basis. It will thus be seen that the method of recruitment in the two departments was entirely different withl varying results. Consequently the principle of earlier selection which pre-L supposes similar method of initial recruitments can have no application here.
11. We consider that the more appropriate provision for determining seniority of the appellant vis-a-vis the contesting respondents is to be found in sub-rule (2) of rule 8. This sub-rule specifically lays down the principles for regulating seniority of officers appointed by initial recruitments which the appellants in these appeals are and officers who have joined service otherwise as is the case with the contesting respondents. It is not in dispute that both sets of officers held temporary vacancies and in accordance with clause (a) of the said sub-rule it is the length of their continuous officiation which is to be) the governing factor in the preparation of the combined seniority list. \B 12. For the reasons stated above, we set aside the seniority list of .20-2- 1974 in so far as it affects the appellants and the contesting respondents. I tis of course open to us to re-arrange the positions of the appellants and the contesting respondents in the impugned seniority list, but we purposely refrain from doing so. It is to be observed that we are here dealing with an extraordinary situation. Consequent upon the reconstitution of the social welfare services in 1970, one cadre was abolished and the officers affected thereby were transferred en bloc to another cadre. As already pointed the incidents of service in the two cadres were different, it is not only possible but also very likely that the strict application of clause (a) of paragraph (2) of Rule 8 may cause hardship to some officers. The Govemment has the power to relax the said sub-rule to ameliorate the hardship which this Tribunal cannot do. Apart from that to sort out the anamolies which may arise from this extraordinary situation and in order to be just to both categories of officers the Govemment may well prefer to frame a separate set of rules for determining their inter &e seniority. The refixation of siniority by the Tribunal will have the effect of tying down the hands of Govemment in this regard. We therefore leave the matter of preparing a fresh seniority list entirely with the Government. We hardly need to point out the desirability of an early decision in the matter and hope that this will not take more than three months. There will be no order as to costs in these appeals.