SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): --This is an appeal by Kh. Abdur Rehman son of Kh. Abdul Ahad, Forester Jhelum Valley Division, Muzaffarabad against the order, dated 26-12- 1990 by which his appeal before the Secretary, Forests Department was rejected and thereby the respondent No.3 was placed senior to him. The appellant has impleaded Azad Government through its Chief Secretary, Chief Conservator of Forests, Muzaffarabad and Abdur Rehman Awan, Forester, Muzaffarabad Division as respondents for the redress of his grievances.
2. The facts giving rise to this appeal as are contained in the memo. Of appeal are that both the appellant and respondent No.3 were appointed as Foresters in the Forests Department by an order, dated 22-3-1972 (Annexure "A") made by the Conservator of Forests, Muzaffarabad. In compliance with the order of appointment, the appellant joined the service of Forests Department on 8th of April, 1972 whereas Abdur Rehman (respondent No.3) did not join his duties as Forester despite the condition laid down in the order that at the event of not joining the service of the Department on 8th April, 1972 by any of the appointees, the order shall lose its application to his extent and shall be deemed as cancelled. Subsequently the respondent No.3 after his release from the Army was again appointed by an order, dated 1.1-7-1972 against the vacancy of Meer Akbar, Forester who was then reverted to his original post. Both the appellant and respondent continued their service as Foresters in the Forests Department and according to the seniority list prepared in the year 1987, the appellant being senior to respondent No.3 was placed at serial No.22 and the respondent No.3 at the serial No.25. The date of appointment of respondent No.3 was shown as 12-7-1972 and that of appellant as 8-4-1972. The respondent No.3 did not object to the entries of the seniority list (Annexure `D'). But in the year 1988 another seniority list was prepared and this time conversely to the previous seniority list, the respondent No.3 was shown at serial No. 20 and the appellant at serial No.21. Being aggrieved by the entries of this seniority list, the appellant brought an appeal before the Secretary, Forests because the Chief Conservator of Forests Department had also given his opinion in his Letter No. 8084, dated 8-6-1988 in favour of respondent No.3. It was claimed by the appellant that had the respondent No.3 joined the service of the Forests Department as Forester according to the order issued on 22-3-1972.Then of course, he would have been senior to the appellant but by not joining the service on fixed date he had lost his right of seniority which fact is even confirmed by the issue of his second order of appointment dated 11-7-1972. But this appeal was not successful and the appellant brought the present appeal at this forum for invoking the jurisdiction of this Tribunal under section 4 of the Service Tribunals Act. The appellant claims that the impugned order was conveyed to him on 30th December, 1990 and so his appeal before this Tribunal was quite in time.
3. The contents of the appeal from paras. Nos.1 to 13 stand verified as correct and true to the best of his knowledge by the appellant and it is prayed by him that by accepting the present appeal, he may be declared senior to respondent No.3 after setting aside the impugned order with cost.
4. By a short order of this Tribunal dated 21-2-1991 the above-noted appeal was admitted in this Tribunal for regular hearing and the respondents were asked to file their written objections, if any.
On behalf of respondents para. 1 of appeal is accepted to be correct to this extent that both the appellant and respondent No.3 were originally appointed as Foresters on 22-3-1972, paras. 4, 8 and 10 have been partly accepted. Paras. 1, 2, 3, 5, 6, 7, 11, 12 and 13 are denied. On behalf of respondent No.3 it is maintained that he had obtained better position on the merits list as compared _to the appellant and having been called back for the exigencies of Army service he was relieved of his duties on 3-12-1971 as Forester and that under a written request by the Commanding Officer, the Chief Conservator of Forests had reserved for him the post of Forester till he was relieved of his duties by the Army authorities to join his post. During his absence from the Department, the lien of the respondent No3 was kept 'against his original post of Forester and after he was relieved from the Army duties, he was once again appointed to work as Forester in the Department. Therefore, the respondent No.3 was rightly placed senior to the appellant.
5. We have given our careful consideration to the arguments as were addressed by the learned counsel of each party-We have also gone through the orders of Forests Department which were made by that department from time to time in relation to service of the appellant and respondent 'No.3. It is available on the file that both the appellant and the contesting respondent No3 were selected for the temporary posts of the Foresters in the Forest Department vide Order No.58 of the Forests Department for the year 1971-72. The last para. Of this order shows that it was made subject to the condition that the selectees shall be required to join their posts on 8th of April, 1972 at 10 a.m.
Positively failing which their appointments shall be deemed as cancelled. It is, no doubt, that in, compliance with this order of Forests Department, the appellant joined the service of the Forest Department as Forester while the respondent No3 could not do so. It is argued on behalf of the respondents that having been called for Army duties under national emergency, the respondent had failed to join the post of Forester on the date fixed in the order of appointment dated 22-3- 1972. But the period spent by him in the Army service shall count towards his inter se seniority in the cadre of Forester. Under section 7, subsection (5), Azad Jammu and Kashmir Civil Servants Act, 1976, it is provided that a period of not less than two years spent by a medical practitioner who following his release from service with the Armed Forces under the compulsory service in the Armed Forces Ordinance, 1971 of Pakistan shall count towards his seniority in his service under the Civil Government. But there is no rule of law in case of other ranks of the Armed Forces to get such like benefit in service under the Civil Government. Apart from that through a copy of Letter No. 6137/CORT/E-3, dated 22nd June, 1972 EME Centre (Records Wings), Quetta placed on the file as Annexure "B" it appears that the respondent No.3 had actually joined Army service on 14th of December, 1971 under emergency and he was relieved of his duty on 30th of next September, 1972. It follows that the respondent No3 appeared before a Selection Committee at Muzaffarabad for his selection and appointment as Forester while he had already joined the Army service under recall notice.
Therefore, the claim of the respondent that he had joined the Army service under national emergency immediately after his appointment as Forester under Forests Order No.58 dated 22-3- 1972 is nullified. Had the respondent No3 joined the service of the Forests Department in compliance with the Forests Order No-58, dated 22-3-1972, then of course, he was entitled to get all service benefits under the civil Government for having participated in the Army service under National Emergency. But the facts that he did not join the Office of Forester on the given date of 8th April, 1972, and he held no lien against the post of Forester when he returned to join civil service are well-established. Hence the claim of the appellant that he has become senior to respondent No. 3 is established beyond doubt.
6. It is next argued by the learned counsel for the appellant that the position assigned to the appellant in the seniority list must not have been changed in the seniority list subsequently issued by the Forests Department in the year 1987. According to the learned counsel, the right of seniority against respondent No3 which had earlier accrued to the appellant was his vested right and the respondents held no jurisdiction to deprive him of that right at their sweet will. As per record placed on the file, we find that both the seniority lists are the draft seniority lists -and they are not certified by the competent Authority to be the final seniority lists of the employees in the cadre of Foresters.
Hence the argument that the appellant was deprived of his senior position allotted to him in the seniority list carries no weight and is not tenable.
7. Under Rule 8 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, the seniority inter se of persons appointed to the posts in the same grade is to be determined if appointed by initial recruitment in accordance with the order of merits assigned to them by the Selection Authority and in the case of other persons with reference to the date of their continuous appointment in the grade. In the instant case, according to selection, the respondent No.3 was, no doubt, allotted senior position as against the appellant. But he lost that position because of his fresh appointment against the post of Forester which he joined at a later date on 12-7-1972. Now inter se seniority between the appellant and the respondent. No3 shall have to be determined afresh and the above rule provides that it is to be determined according to their date of appointment in regular service. Since the appellant entered in the cadre of Foresters earlier to respondent No3, he is held senior to respondent No.3.
8. For the above reasons, we allow this appeal and set aside the impugned order. The appellant is declared senior to respondent No3. No order as to costs.