' NOOR MUHAMMAD MAGSI (MEMBER).---This appeal has been filed against the order dated 13- 711995 passed by the Commissioner, Afghan Refugees, N.-W.F.P., Peshawar whereby the services of the appellant have been retrenched from the post of Assistant/Accountant (B-11) with effect from 15-7-1995. The appellant submitted departmental appeal on 6-8-1995 to the Secretary State and Frontier Region Division, Islamabad and after waiting of the statutory period of 90 days he has come in appeal to this Court. The facts of the case in brief are that the appellant is the senior-most as Accountant (B-11) as well as Assistant (B-11) having been promoted on 12-10-1982. In the seniority list of Accountants (B-11) enclosed with the appeal, he is senior both as Assistant and Accountant from respondents Nos. 4 to 8. The case of the appellant is that the retrenchment ought to have been made in the reverse order as per section 11 of the Civil Servants Act, 1973. He, therefore, challenged the order of his retrenchment being violative of Rule 11(2) as well as against an earlier two judgments of the Service Tribunals in Appeals Nos. 29(R)/91 and 123(R)/91.
2. We have heard the learned counsel for the parties at length. The contention of the learned counsel for the appellant is that the appellant is senior to respondents Nos. 4 to 8 who are junior to him but they have been retained in service and the appellant who is senior to them has been terminated. The counsel invited our attention to section 11(2) of the Civil Servants Act, 1973 and contended that on the abolition of the post or reduction in the number of posts in a cadre or service, the services of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be the one who is the most-junior in such cadre or service. He placed reliance on the judgment of the Service Tribunal passed in Appeals Nos. 29(R)/91 and 123(R)/91. He also drew our attention to the State and Frontier Regions Division letter dated 26-4-1992 in which it is mentioned that retrenchment of staff should be done in reverse order of seniority. Lastly learned counsel relied on the ruling "last in first out" as propounded by the Supreme Court in PLD 1987 SC
447. On the other hand learned counsel for the Afghan Refugees contended that the retrenchment of the appellant was fully justified and there was no reason whatever to upset the order called in question in this appeal.
3. We have given our anxious consideration to the matter and find that the appellant's case is fully covered by section 11(2) of the Civil Servants Act, 1973 which is to the following effect:-- "Where, on abolition of a post or reduction in the number of posts in a cadre or service the service of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be the one who is the most-junior in such cadre or service."
' These instructions came under consideration of this Tribunal in Appeals Nos. 29(R)/91 and 123(R)/91 and the Tribunal held that "following a pick and choose method of termination of service and retaining juniors, while making retrenchments in the organization, was mala and d ultra vires to the rules and prescribed procedure". In this view of the matter the Tribunal set aside the order of termination of the appellants in those cases and re-instated them into service from the dates of their respective termination. We further find that the States and Frontier Region Division have also issued instructions vide their Letter No,F.1(7)-AR-III/92, dated 26-4-1992, para. 3 whereof reads as follows: "We have issued policy decision regarding retrenchment of staff which should be done in reverse order of seniority of official in the Grade."
4. Now the seniority of the appellant vis-a-vis respondents Nos. 4 to 8 is not disputed. According to seniority list of Accountants as well as that of Assistants, the appellant is senior to the private respondents. The appellant could not have been terminated while persons who were junior to him have been retained in service. As such in these circumstances the impugned order of appellant's termination is in clear violation of section 11(2) of the Civil Ser ants Act, 1973 and the earlier judgments of the Service Tribunal passed in A, Teals ' Nos. 29(R)/91 and 123(R)/91. It is also against the instructions issued by the State and Frontier Region Division on 26-4-1992. That being so, the order of retrenchment of the appellant is not sustainable: We, therefore, set aside the order of appellant's retrenchment and reinstate him into service from the date of his retrenchment with all back benefits.
5. No order as to costs.
6. Parties be informed.