' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances.
1. The respondent Mrs. Saeeda Azra Sabri was appointed as Assistant Mistress in P & T Model School, Multan Road, Lahore, a school primarily for the children of the Post and Telegraph Department under the administrative control of the Postmaster General, Central Circle, Lahore on 20-5-1967.
She was not a trained teacher. The appellant Mrs. Tasneem Jahan passed her B.Ed. Examination on 18-12-1971. She was approved for appointment being qualified as a teacher by the Departmental Selection Board on 23-5-1972. Vacancy arising on ex-Pakistan leave of Mrs. Roshanara, the appellant was appointed to the post of Junior Teacher (NPS-9) on 17-8-1974. The respondent qualified B.Ed. Examination on 9-10-1974. A permanent vacancy arising on 1-5-1975, the respondent was appointed as a junior teacher in NPS-9 with effect from 1-6-1975 vide order dated 28-11-1975.
The order stated that the promotion was purely temporary and that she may be reverted to Iler previous scale without assigning any reason. On 20-6-1977 the Postmaster General issued a memorandum appointing approved candidates in NPS-8 as Assistant Mistress in P & Model School, Multan Road, Lahore with effect from 16-4-1977 against newly created posts, amongst whom was the appellant at No,
1. The memo. Concluded that all previous arrangements/appointment order prior to 15-4-1977 may be treated as cancelled. There being no rules of service, the Postmaster General appears to have sought advice of the Provincial Directorate of Education, Lahore Division.
Reply was sent on 14-10-1978 wherein it was stated that "the year of passing B.Ed. Examination or joining service whichever is later is the merit for the preparation of merit list of in-service candidates". Apparently acting on this, the department showed the appellant being senior having passed B.Ed. Examination in 1971 over the respondent who had passed the B.Ed. Examination in 1974.
The respondent appears to have made a representation. She was replied by the Postmaster- General, Central Circle, Lahore as follows: "It is correct that Mrs. Saeeda Azra Sabri was appointed against a regular vacancy with effect from 1-6-1975 whereas Mrs. Tasnim Jahan was appointed against a regular vacancy with effect from 16- 4-1977. Moreover, Mrs. Tasnim Jahan was approved by the department for appointment as a teacher on 23-5-1972 and she has been continuously officiating with effect from 17-6-1974 onwards till the time she was appointed against a regular vacancy on 16-4-1977. As a matter of principle Mrs. Tasnim Jahan had a prior right to be appointed against a regular vacancy that fell vacant on 1-5-1975. However, due to some clerical omission Mrs. Saeeda Azra Sabri who was decidedly junior to Mrs. Tasnim Jahan was appointed against that vacancy. This was not due to any fault of Mrs. Tasnim Jahan and as such she cannot be made to suffer on that account.
(b) Existing formula of the Education Department of determining seniority of teachers is as under: "The date of passing B.Ed. Examination or joining service whichever is later to merit for preparation of seniority list of in-service teachers."
' In this formula there is no mention of a regular vacancy. So far as the date of joining service is concerned, Mrs. Tasnim Jahan joined service at a much earlier date than Mrs. Saeeda Azra Sabri. In view of these facts it is decided that Mrs. Tasnim Jahan would retain her senior posting in the seniority list". This is vide memo. Dated 19-8-1981. The respondent having been unsuccessful before the departmental authority filed an appeal before the Federal Service Tribunal, Islamabad who accepted the same vide order dated 30-4-1989. At the time of hearing of the petition for leave to appeal it was noted that "in the seniority list of Junior Teacher in BPS-9 issued on 10-1-1985, the petitioner was shown one step above the respondent. This list was challenged by the respondent N6.1 successfully before the Service Tribunal. The criteria adopted by the Service Tribunal for determining their inter se seniority was firstly the nature of the post to which their appointment had been made i,e, Regular post or a leave vacancy arrangement or a purely temporary arrangement made otherwise. The other criteria adopted was that the Federal Government had by an order made on 19/20-6-1977 annulled and cancelled all earlier orders passed in respect of the petitioner.
We find prima facie that the criteria adopted are outside the law because neither the Civil Servants Act nor the Civil Servants (Appointment, Promotion and Transfer) Rules, approved of such a criteria.
What had to be seen was whether their appointment was made in a regular manner i,e, in accordance with law applicable to their recruitment and promotion. We have been given the date on which the petitioner was found fit by the Departmental Promotion Committee for appointment and the date on which she was appointed. Both these dates happen to be prior to that of the respondent No,1 . Similar dates in respect of the respondent No, 1 are not available on record, nor is the learned counsel representing the respondent No,1, at this stage in a position to let us know it. In the circumstances leave to appeal is granted". This is vide order dated 1-11-1989.
2. At the hearing today learned counsel for the respondents have not disputed that the date of Departmental Promotion Committee on which the appellant was found fit for appointment is 29-5- 1972 and that the appellant was appointed in NPS-9 on 17-8-1974, though it is pointed out by the learned counsel for respondent No,1 that vide memo. Dated 20-4-1977 previous appointment of the appellant prior to 15-4-1977 was cancelled. This was of course, behind the back of the appellant in the secrecy of the office, so not binding on her. The second point to be noted is that the appellant passed her B.Ed. Examination in 1971 and the respondent in 1974. However, the appellant was appointed on 17-8-1974 against a leave vacancy but the respondent was appointed against a permanent vacancy from 1-6-1975. It is on this basis that the respondent claims seniority over the appellant. But it may be recalled that the appointments of the respondent was also temporary.
Further, there were no rules of the department. On the respondent's representation the Postmaster- General held that at the time of appointment against permanent vacancy on account of clerical mistake the respondent was appointed, though appellant should have been appointed having passed B.Ed. Examination earlier in 1971 whereas the respondent had passed the B.Ed. Examination in 1974 and having already been appointed on 17-8-1974, vide his memo. Dated 19-8-1981. Rules of the Department came in force on 25th January, 1983 which vide rule 6 provided that:-- "the persons other than Grade-17 already appointed by direct recruitment or promotion or transfer shall be treated to have been appointed under these rules and their appointment regularized from the date of issue of these rules."
' From this it follows that regularization of service is under these rules. Therefore, when the appellant was appointed on 17-8-1974 against a leave vacancy or respondent appointed on a permanent vacancy from 1-6-1975, though expressly on temporary basis, neither was regular. The appellant having been appointed earlier and having passed B.Ed. Examination in 1971 whereas the respondent passed the B.Ed. Examination in 1974, if the departmental authority in its order dated 19- 8-1981 found that the appellant was senior to the respondent, its aforesaid order was not liable to be interfered with by the Service Tribunal. It may also be noted that both the appellant and the respondent had been granted Selection Grade in BPS-12 the former from 8-10-1984 and the latter from 16-4-1989. This was another reason why the Service Tribunal should not have interfered. In these circumstances, the appeal directed against the impugned order of the Service Tribunal is allowed but the parties are left to bear their own costs.