MUHAMMAD RAZA KHAN MEMBER. - The appellant was initially appointed as Lower Division Clerk in the Service of Pakistan Railways on 20.1.1962. He was promoted as Head Clerk (B-11) in 1975. He was selected for promotion to the post of Office Superintendent (B-14) vide order dated 11.11.1982 and promoted as such w.e.f.28.4.1983. The next step of promotion for Office Superintendent (B-14) was to the post of Assistant Personnel Officer in B-17 and alongwith the Office Superintendents the Senior Welfare Inspector in B-14 was also eligible tor the said promotion. The Welfare Inspector falls in a different cadre than the clerical cadre to which the appellant belongs. However, for the post of Assistant Personnel Officer both the clerical cadre and the cadre of Inspectors are merged and a combined seniority is prepared for this purpose. The inter se seniority of Officers of both the eligible cadres is find with reference to the date of regular promotion to the eligible posts. Since the appellant was admittedly promoted oh regular basis to the eligible post on 1.5.1983, therefore, he was entitled to be considered for the next promotion as Assistant Personnel Officer alongwith his colleagues on the basis of inter se seniority. For this purpose a seniority list was prepared and thereafter ride notification dated 22.6.1995 the respondent. No.1 approved the regular promotion of five officers to the post of Assistant Personnel Officer (B-17). In the said notification the appellant was placed at serial No.1 while the respondent No.5 appears at serial No.3. Four months thereafter i.e; on 9.10,1995 the impugned order was issued by the Office of respondent No.3 in these words:- No.752-E/51 XXl(L)/APO-II Dated 9.10,1995.
Subject: FINAL SENIORITY LIST OF SENIOR WLI/LABOUR WARDEN (BS-14) CONTROLLED BY HEADQUARTERS OFFICE, LAHORE.
The decision communicated vide this office letter No.755-E/51-XXI (APO-11 > dated I6, l2.1995 is hereby cancelled and withdrawn ab initio.
The regular date of promotion of Mr. Pervaiz Rabbani as Senior Welfare Inspector/Labour Warden (BS-14) may now be inserted as 1.6.80 in the seniority list of Senior Welfare Inspector/Labour Warden (BS-14) issued vide this office letter dated 15.2.1995 in terms of the decision already issued vide this office letter No.752-E/51-XVIII(APO-II) dated 2.10.1989 based on this office letter No.752- E/51 -XV/ JPO-VI) dated 29.11.1980.
This has the approval of the competent authority."
2. Since the position of seniority of the respondent No.5 was antedated hr B-14 whereby his eligibility to the post of Assistant Personnel Officer could be deemed to be in preference to the appellant therefore, the appellant apprehending the loss of seniority in B-17 for the purpose of further promotion to B-18 find departmental representation on 7.11.1995. This representation was rejected on 10.4.1996. Hence this appeal.
3. The respondents contested the appeal by filing written objections. We have listened to the arguments on behalf of the parties and perused the record.
4. There is no denial of the fact that the promotion fo the post of Assistant Personnel Officer (B-17) is based on the sole criteria of combined seniority in B-14 to determine on the basis of "the date of entry into eligible grade". The appellant entered into eligible group on 1.5.1983 whereas the position of the respondent No.5 is not that simple. He joined the service as Platform Inspector Grade-II in B-
10. He was transferred to the post of Welfare Inspector Grade-I in B-10 vide order dated 5.4.1980. The post of Welfare Inspector was placed in B-10 whereas the post of Welfare Inspector/General was in B-12 and during the selection process for the post of Welfare Inspector/General (B-12) the respondent No.5 was recommended by the DPC vide order dated 4..2.1986. However, the post of Welfare Inspector Grade-I (B-12) was upgraded to B-14. Thereafter, it appears that the respondent No.5 was posted as Officiating Senior Welfare Inspector (B-14) w.e.f. 1.6.1984 and vide the decision of DPC dated 10.9.1986 he was placed in the approved panel in the order of seniority with effect from certain dates mentioned against their names and thus the respondent No.5 appear at serial No.18 was regularized with effect from the date of officiating as Senior Welfare Inspector i.e. 1.6 1984. From this narration it will be seen that the respondent No.5 was not holding the post of Senior Welfare Inspector in 1983 as he was appointed to officiate in that capacity with effect from 1.6.1984 and was regularized with effect from that date by order dated 10.9.1986 with retrospective effect whereas the appellant was already working as an Office Superintendent with effect from 1.5.1983. There is no dispute about the fact that the post of Senior Welfare Inspector and that of the Office Superintendent were the eligible post for promotion to Assistant Personnel Officer (B-17) and the combined inter se seniority was to be from the date of entry in eligible grade. Thus the appellant was invested with valuable right and in accordance with the amendment in the section-2 of the Civil Servants Act it has become vested right of a civil servant that his terms and conditions of service shall not be varied to his disadvantage. The impugned order dated 9.10.1995 whereby the seniority of-the respondent No.5 was antedated with effect from 1.6.1980 is neither supported by the facts nor by the law or rules. He was not holding the post of Senior Welfare Inspector on 1.6.1980 even on ad hoc or on temporary basis. He was not even placet! In B-14 in 1980. Therefore, his ar.
Tedation of seniority with effect from 1 .k. 1980 was in flagrant violation of the law and the terms and conditions of service of all those employees who were working in B-14 with effect from 1.6.1980 to 1.6.1984. He was inducted on officiating basis to the post of Senior Welfare Inspector in B-14 on 1.6.1984 and this officiating appointment was later on regularized in 1986 with retrospective effect.
5. It was argued on behalf of the respondent that in 1989 the seniority list o! Eligible staff for promotion to the post of Assistant Personnel Officer B-17 was proposed and circulated amongst the eligible officers for verification and that in the said seniority list the respondent No.5 was placed at serial No.1 whereas. The appellant was placed at serial No.8, It was further argued that in token of correctness the appellant had signed in the margin of the said seniority list. This argument was developed to prove that since the seniority position of the appellant and the respondent No.5 were admitted to be correct by the appellant, he was estopped to challenge the same now by the present appeal.-This argument is repelled by the fact that the seniority lists are normally circulated amongst the employees asking to file their objections/representations within a certain period after verifying the entire record. This list was admitted by the appellant to be correct at the most denotes that the entries relating to the appellant in the said list were correct and the appellant will be estopped to claim otherwise. This list cannot at all be taken to be a final seniority list where the name of the respondent No.5 appears at serial No.1 and he was shown as Senior Welfare Inspector with effect from 1.6.1980. Had this been the correct position, there was no necessity of issuing the impugned order dated 9.10.1995 for antedating seniority of the respondent No.5. The entry with regard to the appellant in the said list in certainly undisputed but the entry in the last column of the said list with regard to respondent No.5 is certainly mis-statement and incorrect. He was not a Senior Welfare Inspector on 1.6.1980 and, therefore, he had not entered the eligible grade with effect from that date.
6. It was argued on behalf of respondent No. 5 that the respondent No.5 belonged to the cadre of Workmen and was, therefore, not a civil servant under the provisions of Civil Servants Act, 1973. That may be true earlier but when the respondent was placed in the category as Welfare Inspector he became a civil servant falling within the definition of the civil servant under the Act and, therefore, as Welfare Inspector or Senior Welfare Inspector he could not be bestowed with the benefits, like a workman, by the Head of Department. Therefore, the contents of para-4 of the written objections clearly prove that with effect from 1980 the respondent No.5 was transformed into a civil servant and was to be treated in accordance with law and the rules, In para-5 of the written objections it is admitted that in the larger interest of railway sports and in relaxation of the relevant rules he was regularized as Welfare Inspector. Rules cannot he relaxed by an authority when they affect the rights of another civil servant and more particularly rules cannot be relaxed for the antedation of seniority with effect from a date when a person was not holding the post even on ad hoc or officiating basis. Such type of orders are not the relaxation of rules but they are in violation of-the ales and cannot be upheld.
7. Another technical objection of limation was also raised on behalf of respondents. The impugned order of antedating seniority was issued on 9.10.1995. The departmental appeal was find on 7.11.1995 that is within thirty days of the impugned order. The representation was rejected on 10.4.1996 on merits and without a speaking order and the present appeal has been find on IS.4.1996 i.e. Within eight days of the appellate order. We fail to understand how the respondents conceived the idea of limitation in the present appeal. The appeal was certainly within time rather reversely it is the respondents who are responsible lor issuing an order on 9.10.1995 making it effective from fifteen years retrospectively over and above the heads of so many civil servants.
8. For the foregoing reasons, we accept this appeal, set aside the impugned original and appellate orders dated 9.10.1995 and 10.4.1996 and direct that the seniority position of the- .Appellant and the respondent No.5 may be reckoned with effect from 1.511983 and 1.6.1984 respectively. Rest of the prayer in appeal is rejected being irrelevant and not maintainable.
9. No order as to costs.
10. Parties be informed.