ABDUL HAMID KHAN (MEMBER).----Fazal-ur-Rehman Khan, Assistant, Directorate of Industries and Mineral Development, Punjab has filed this appeal against the seniority list of Assistants of the Mineral Development Wing of the Directorate as it stood on 8-4-1990 and was circulated vide order dated 9-4-1990 so far as it relates to the -appellant and the contesting respondents Nos. 3 to 16. He has prayed that respondent No.1 the Director of Industries and Mineral Development and respondent No. 2, Secretary of Industries be directed to fix the seniority of the appellant on the basis of the date of his continuous appointment as Assistant i.e. 30-8-1979.
2. The appellant joined service on 13-5-1957 as Junior Clerk in the erstwhile Directorate of Industries, West Pakistan. In due course of time he was promoted as Senior Clerk and then finally as Assistant on 30-8-1979 in which capacity he was confirmed with effect from 20-5-1985.
3. Till the dissolution of One-Unit there used to be two separate directorates namely the Industries Directorate and the Mineral Development Directorate and the ministerial establishments of these Directorates were governed by two separate sets of service rules namely the West Pakistan Industries Department Ministerial Service (HQs) Rules, 1964 and the West Pakistan Industries Department (HQs Office of the Directorate of Mineral Development) Ministerial Establishment Recruitment Rules, 1965. On the dissolution of One-Unit the two Directorates were abolished and in their place a new Directorate of Industries and Mineral Development, Punjab was established through a single sanction. All the previous administrative approvals/sanctions were superseded and new posts were created for the newly-established Directorate of Industries and Mineral Development on 31-7-1970. The appellant and all others were adjusted against the newly-- created posts.
4. In 1985 the Directorate was re-organised and the Supply and Inspection Wing, which was located in the main Industries Wing of the Directorate, was abolished with the result that 267 posts were reduced in the Directorate with effect from 1-7-1985. As a result 246 officials were rendered surplus for whom the SGA&I Department was approached to absorb them in other Departments. In the process the appellant was also declared to have become surplus with effect from 1-7-1985 and his name was also included in the list of surplus staff sent to the SGA&I Department. However, soon thereafter the appellant was absorbed /adjusted by the Director with effect from 26-6-1985 within the Directorate of Industries in its Mineral Development Wing (HQs) against an available vacancy.
The Industries Department was also notified of this change and requested to delete the name of the appellant from the list of surplus staff. That Department, however, did not pass on this information to the Welfare Wing of the SGA&I Department,
5. Respondent No. 1 issued seniority list of the Mineral Development Wing on 31-8-1985 and 29-10- 1988 in which the seniority position of the appellant was reflected with reference to the date of his regular appointment in the grade of Assistants i.e. 30-8-1979. The appellant was also granted selection grade with effect from 1-7-1987 on the recommendation of the DPC on the basis of the said seniority lists. According to the appellant, neither these seniority lists nor the award of selection grade were challenged by the contesting respondents at that time. However, in 1988 respondents Nos. 3, 4 and 6 filed an appeal before this Tribunal in which they assailed the seniority list dated 31-8-1985 which was disposed of by the Tribunal with a direction to the Director of Industries to dispose of the pending appeal. The Director accepted the appeal and issued a revised seniority list on 9-4-1990 wherein the appellant was brought down at S. No. 18 and the respondents were assigned seniority positions at S.Nos. 3 to 16 above the appellant. The following note was also entered in the seniority list against the name of the appellant: "Confirmed as Assistant against a permanent post in the Directorate vide their Order No. AE-8- 68/85, dated 20-5-1985. Rendered surplus as a result of the decentralisation of purchase procedure. He was absorbed as such with effect from 1-7-1985 in the Mineral Development Wing a closed sub-cadre of the Directorate of Industries and Mineral Development which date 1-7-1985 has been reflected in the seniority list in pursuance of the order from the Regulation Wing of the SGA&I Department conveyed by the Industries and Mineral Development Department vide Memo No. 1-2-8/85, dated 2-4-1990."
6. Thus the appellant's seniority in the Mineral Development Wing of the Directorate was fixed with effect from 1-7-1985 i.e. The date on which he was to become surplus instead of his original date of promotion as Assistant i.e. 30-8-1979. Orders granting selection grade were also withdrawn. As the appointment of respondents Nos. 3 to 15 in the Mineral Development Wing was made before 1-7- 1985, they were, therefore, placed senior to the appellant. The latter filed a representation dated 30-4-1990 before respondent No. 2 but it was not decided although a period of 90 days had passed and hence this appeal before the Tribunal.
7.We have heard both the parties and have also gone through the para vise comments/written objections submitted by the respondents. The learned counsel for the appellant has contended that:--
(a) the effect of issuance of a new sanction of posts under one and the same budgetary head after canceling the previous administrative approvals in 1970 was that under rule 2.9 of the Civil Service Rules, Punjab, Vol. I, Part I all the posts of the same category created through a single sanction order constituted one composite cadre.
(b) according to rule 2(h) of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974, which were enforced on 24-8-1974, all the posts sanctioned as a separate unit constituted one separate functional unit/cadre. The department itself has confirmed this view in its letter-dated 4-1-1988 as under "The Service Rules for the Ministerial Staff of both Mineral Development side and Industrial side are the same and the staff is governed by the West Pakistan Industries Department Ministerial Service (Headquarters) Rules, 1964."
(c) the appellant was to become surplus on 1-7-1985 but he was adjusted within the Directorate against an available vacancy well before the said date. He could not, therefore, be considered to have been rendered surplus as he was never relieved by the Directorate to report to the SGA&I Department for placement in the surplus pool. The relevant instructions for absorption or surplus staff are, therefore, not applicable in his case as he was never placed in the surplus pool;
(d) on the abolition of the Directorate of Industries and Directorate of Mineral Development on 30- 6-1970 the continuance of the Mineral Development Wing cadre as a closed sub-cadre of the Directorate was illegal. In this connection he also cited this Tribunal's judgment dated 8-9-1982 in the case of Ch. Muhammad Sharif etc. v. Secretary, SGA&I Department;
(e) the various wings such as the Mineral Development Wing were formed in the Directorate of Industries for the sake of administrative convenience and did not constitute any cadres or functional units in themselves. In any case no sanction of the rule-making authority exists for continuing the Mineral Development Cadre as a closed sub-cadre of the Directorate of Industries.
The Director or Secretary, Industries could not on their own create functional units in the Department;
(f) all the posts of Assistants in the Directorate have been sanctioned through one sanction order.
None of these posts have been sanctioned for any specific wing, including the Mineral Development Wing, and as such there is no legal sanction behind the constitution of the so -- called closed sub-cadre of the Mineral Development Wing;
(g) Regulation Wing of SGA&I Department's advice was based on the amendment-dated 17-12- 1988 of rule 3 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. This amendment could not be enforced retrospectively and applied to facts and circumstances, which occurred in 1985. The said advice is, therefore, ill-conceived and inapplicable;
(j) the policy letter dated 8-1-1969 regarding determination of seniority of surplus officials lays down that only such officials who are absorbed in different departments are to be treated as direct recruits on their absorption. Since the appellant was adjusted in his own department this policy could not be made applicable to him.
8. The Director, Industries and Mineral Development/respondent No. 1 and the Secretary, Industries and Mineral Development/respondent No. 2 have not controverted the contention of the appellant regarding seniority and have stated that "the seniority of the Mineral Development Wing and the Industries Wing were kept separate. However, due to the fact that the Service Rules of the Ministerial Staff of both the Wings of Industries and Mineral Development, the Appointing Authorities are the same and the staff is borne in the same office, the seniority should be joint".
They have admitted that the matter was referred to the Regulation Wing of the SGA&I Department on an erroneous assumption that the appellant had been declared surplus. The advice of the Regulation Wing was thus received on an erroneous basis. It has further been explained that the appellant was never relieved to be placed in the surplus pool but was in fact adjusted in the Mineral Development Wing of the Headquarters Office of the Directorate of Industries and Mineral Development before he could be rendered surplus. They have also furnished a copy of the Director of industries' letter dated 18-8-1985 addressed to the Section Officer (Welfare), SGA&1 Department in which names of 17 officials of the Directorate have been given who had been rendered surplus alongwith the appellant and out of which 7 were similarly adjusted in the Directorate itself. In another letter dated 16-6-1990 addressed to the Under-Secretary-1, Industries Department, the Director of Industries had informed him that the Welfare Wing of the SGA&ID had accepted the position that the appellant had been absorbed (adjusted) in the Industries Directorate itself and had, therefore, deleted his name from the list of the surplus staff being maintained in the Welfare Wing.
9. Whereas the respondent Nos. 1 and 2 have not really opposed the appeal, some of the other respondents have vehemently contested it. The real opposition has mainly come from respondents Nos. 3 to 7, 9 to 11, 13 and 14 who have submitted detailed written objections. They have assailed the appellant's contentions on the following grounds:
(1) Whereas on one hand the appellant claims that the ministerial staff of the Directorate of Industries and Mineral Development had a joint cadre, he on the other hand prays that he may be assigned a specific position in the seniority list of the ministerial establishment of the Mineral Development Wing. This is a contradiction in terms.
(2) Till the dissolution of One-Unit there were two separate Directorates namely the Directorate of Industries and the Directorate of Mineral Development which were governed by separate sets of service rules namely the West Pakistan Industries Department Ministerial Service (Headquarters)
Rules, 1964 and the West Pakistan Industries Department (Headquarters of the Directorate of Mineral Development) Ministerial Establishment Recruitment Rules, 1965. These rules have never been superseded as no new rules have so far been promulgated.
(3) The merger of the two Directorates on 1-7-1970 does not, however, mean that it amounted to creation of one cadre comprising the Industries and Mineral Development Wings. Instead a separate closed sub-cadre of the Mineral Development Wing has all along been maintained as decided by the Secretary, Industries in 1971 with the result that separate seniority lists were throughout maintained for the ministerial staff of the two wings. In Appeal No. 396 of 1980 Syed Riaz Hussain v. Secretary, Industries and Director of Industries the Punjab Service Tribunal has upheld the existence and separate entity of a closed sub-cadre of the Mineral Development Wing vide judgment dated 8-6-1981.
(4) As held in the case cited as 1988 SCM R 453(a) there is no legal limitation on the creation or constitution of separate cadres for various categories` of officials in a Department.
(5) The aforesaid two sets of rules are admitted to be the existing rules by virtue of section 23 of the Punjab Civil Servants Act, 1974 as these have never been repealed nor any new rules have been framed. This position has been acknowledged by the Director of Industries in his comments on the departmental appeal of the appellant, which were furnished to the Secretary, Industries.
(6) Since there were four officials senior to the appellant in the Industries Wing who were also placed in the surplus pool and three of them were later absorbed in other departments the appellant cannot claim his continuous service in the Industries Directorate undisturbed over the heads of his seniors. As the latter were treated as surplus he cannot avoid the same treatment.
(7) The absorption of the appellant in the Mineral Development Wing was specifically made subject to the terms and conditions to be settled by the SGA&ID. Hence the amendment in the rules made through Notification dated 17-2-1988 has rightly been applied in deciding the appellant's seniority.
(8) The appellant and the answering respondents have never been in a common seniority list and they were never considered for promotion in juxtaposition before 1-7-1985. Hence the comparison made by the appellant is misconceived.
10. The moot point in this case is whether the appellant was rendered surplus and absorbed on 26- 6-1985 when he was posted against an equivalent post of Assistant in the Mineral Development Wing in the same department or it was merely a case of adjustment in another cadre. As already stated, a list of officials containing 24o names was sent by the Director of Industries on 12-6-1985 to the Welfare Wing of the SGA&I Department stating that they would become surplus on 1-7-1985.
The SGA&I Department was requested to place the officers anal staff in question in the surplus pool and to take steps to absorb them. It has been argued that since the appellant was adjusted against a vacant post within the Department on 26-6-1985 before he could become surplus on 1- 7-1985 he could not be treated as surplus and the rules and instructions governing the absorption of surplus staff would not, therefore, be applicable in his case.
11. We have carefully examined the relevant files of the Welfare Wing of the SGA&I Department and those of the Directorate of Industries and Mineral Development. The aforesaid letter sent to the Welfare Wing of the SGA&I Department on 12-6-1985 also contained the name of the appellant.
However, the orders subsequently issued by the Director of Industries on 26-6-1985 `absorbing' the appellant against an available vacancy in the Mineral Development Wing of the Headquarters Office of the Directorate were not endorsed to the SGA&I Department. This information in any case reached the Welfare Wing through informal sources on or around 14-7-1985.
12. Around this time the Industries Department also approached the SGA&I Department with the proposal that the number of surplus staff could be reduced by retaining and utilizing the services of experienced officers/officials among them through adjustment in the Directorate. It was accordingly suggested that the staff "will be transferred back to their original cadres as and when the vacancies become available in the Industries Directorate. Their names were also deleted from the list of surplus staff with effect from 30-6-1985". The Additional Secretary, Regulation, who was then also supervising the work of the Welfare Wing, made the following observations on this proposal: " ------till regular absorption this staff shall remain on the surplus pool list drawing salary from the department exercising administrative control over the posts against which these have been temporarily adjusted. Regular absorption have to be made in consultation with theconcerned selection authorities. The Industries Department may also be asked to refer all proposals of temporary or regular adjustment of surplus staff to Welfare Wing of S&GAD ---------.."
13. From the foregoing it is evident that even while making the aforesaid adjustments in the Mineral Development Wing the Industries Directorate clearly intended to bring these officials back to their original cadres as and when vacancies would become available in the Directorate.
14. Since the appellant was adjusted as above before he could actually have been rendered surplus, we hold that the adjustment of the appellant in the Mineral Development Wing on 26-6- 1985 as Assistant is not to be construed as a case of absorption especially when both the industries and the Welfare Wing of the SGA&I Department had categorically treated it as temporary adjustment. He was never paid his salary from the surplus pool, which he continued to receive from his parent department. Neither the Director of Industries ever took up the appellant's case for final adjustment/absorption with the Welfare Wing during the last seven years or so nor the Welfare Wing made any efforts during this period to make a final adjustment by absorbing him in any department. The Additional Secretary, Regulation's note referred to above clearly indicates that regular absorption could only have been made in consultation with the concerned selection authorities. The note dated 14-7-1985 of Section Officer-III, which was submitted to the Deputy Secretary Welfare/Additional Secretary, Regulations, makes it quite clear that adjustment of the aforesaid officials had been "made by the Directorate of Industries without consulting the SGA&I Department". No terms and conditions were sanctioned in favour of the appellant for his absorption even after these had been settled in consultation with the Finance Department in respect of the staff rendered surplus from the Industries Department. All these factors conclusively establish the fact that the appellant was not absorbed but was temporarily adjusted in the Mineral Development Wing of the Department with the stipulation that he would be sent back to his parent cadre whenever a vacancy would become available.
15. The cases of absorption of the three assistants senior to the appellant are of no consequence.
Two of them were absorbed in the Districts of their domicile against equivalent posts and the third had himself found the job of PSI for himself. Since none of them has represented against the temporary adjustment of their junior i.e. The appellant a valid presumption would be that they had no grievance, were satisfied with their lot and lived happily thereafter Their having been declared surplus, therefore, does not affect the action taken in the case of the appellant. The officers and staff retained by the Directorate for temporary adjustment were mainly selected on account of their experience and not necessarily on the basis of their seniority
16. The appellant is estopped by his own conduct from raising any objection against the continuance of the two cadres after the merger of the defunct-Directorates in 1970 and after these have continued to exist for the last 22 years because he did not raise this objection either at the time of the merger when the Department decided to continue the ministerial establishment cadre of the Mineral Development Wing as a closed sub-cadre nor when he was adjusted in that cadre on 26-6-1985. He appears to be ungrateful to the fact that it was this cadre, which came to his rescue when he was declared surplus in 1985. Anyhow, he has demolished his own argument by urging that he may be assigned a specific position' in the seniority list of the ministerial establishment cadre of the Mineral Development Wing. Even otherwise the continuance of the two cadres and maintenance of separate seniority lists has not in any way adversely affected the interests of anyone including their vested right of seniority.
17 Viewed in this backdrop it cannot be claimed that the appellant was permanently inducted on 26-6-1985 in the Ministerial Establishment cadre of the Mineral Development Wing of the Directorate. It was thus incumbent on the Department to terminate this temporary arrangement and bring the appellant back into his parent cadre at the first available opportunity. Nothing is, however, lost yet. We have been given to understand that since 1985 a number of posts of Assistants fell vacant against which the appellant could have been posted back. In any event, we are now informed that some posts of Assistants are at present lying vacant in the Ministerial Establishment cadre of the Industries Wing of the Directorate. We, therefore, direct that as originally stipulated the competent authority should issue immediate orders for bringing the appellant back into the fold of his parent cadre where he shall be assigned his original seniority among the confirmed Assistants. Since the appellant had only temporarily been adjusted in the Mineral Development Wing and had never become a part of that cadre and throughout remained an outsider, there was, therefore, no occasion to include his name at any stage in the seniority list of Assistants of the Mineral Development Wing. In view of this position, which has thus emerged, all other issues raised by the contesting parties are of no consequence. The Department would be well-advised to review all other cases of this nature.
18. The appeal is accordingly dismissed in the above terms. There are no orders as to costs.