' MUHAMMAD RAZA KHAN (MEMBER).---The appellant was appointed as Income-tax Inspector in BPS-11 on 26-4-1985 at Karachi. In 1992 he applied for transfer to Lahore. This application was accepted and he joined as Income-tax Inspector at Lahore on 2-5-1992. The provisional seniority list of the Income-tax Inspectors was circulated on 6-7-1995 by the Regional Commissioner of Income-tax, Eastern Region, Lahore and objections were invited. The appellant was placed at serial No,132 where as he considered himself to be placed at Serial No, 104 and, therefore, he filed objections on 10-7-1995. The objections were rejected by the Regional Commissioner of Income-tax so the departmental appeal was filed by the appellant to the Chairman, Central Board of Revenue, Islamabad which was withheld by the respondent No,1 and the appellant was informed on 5-11- 1995 that no appeal in respect of non gazetted staff lies with the Chairman, C.B.R., Islamabad.
Hence the appellant has challenged the position of seniority assigned to him and the rejection of his departmental appeal, by way of this appeal under section 4 of the Service Tribunal Act, 1973, mainly on the ground that on his transfer from Karachi to Lahore, he should have been placed junior to the Inspectors already working in the concerned Region at Lahore but the private respondents who have been promoted, from the lower ministerial staff during the year 1992 should not have been placed senior to him.
2 The private respondents did not appear to contest the case and were proceeded against ex parte. The respondent No,1 filed written objections. We have listened the arguments and perused the record. The undisputed facts in this case are that: . (a) The appellant was appointed as Inspector at Karachi in 1985.
(b) He was transferred to Lahore on his own request in 1992.
(c) He joined his duty on transfer at Lahore on 2-5-1992.
(d) The private respondents were not holding the post of Income-tax Inspector on 2-5-1992 and they were promoted during the year 1992.
(e) The appellant does not ask for counting his service for seniority with effect from 1985 when he was appointed because the transfer from Karachi to Lahore was effected at his request. However, he demands that his service may be counted for seniority with effect from 2-5-1992 when he joined at Lahore Region.
3. The respondent department on the other hand, contends that the appointment by transfer from Karachi to Lahore would amount to initial appointment at Lahore and thus on the basis of the instructions contained in section "C" of the General Principles of Seniority in the ESTACODE the promotees shall rank senior to the direct recruits of a calendar year. Thus, the private respondents, being departmental promotees, have been placed senior to the appellant in the seniority list circulated by the department.
4 The confusion can be resolved by the analysis of the relevant rules and instructions. The respondent department relies on the instructions contained in section "C" of Annexure I of the General Principles of Seniority recorded in the ESTACODE which lays down:- "Departmental promotees vis-a-vis direct recruits.---Officers promoted to the higher grade in a continuous arrangement and as a regular measure in a particular year shall as a class be senior to those appointed by direct recruitment in the same year."
' On the other hand the appellant relies on Rule 6 of the Seniority Rules, 1993 read with rule 4 thereof and the instruction contained in paragraph 6 of Serial No,30 of Chapter III of the ESTACODE. For the purpose of easy reference the relevant portions are reproduced hereinbelow:-- ' Paragraph 6 of Serial No,30 of Chapter-III ESTACODE provides:-- "Seniority on transfer from one office to another.---The instructions in the foregoing paragraphs regulate the position of a deputationist. In his parent office. As regards his seniority in the office to which he is transferred, it should be determined in the following manner:-
(a) When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office.
(b) When a person is compulsorily transferred to another office as a result of conscription, or alongwith the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade in the new office;"
' Rule 4 of the Seniority Rules, 1993 says:- "Seniority on appointment by transfer.---Seniority in a service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post."
' The controversy of determination of inter se seniority is finally resolved by Rule 6 of the Seniority Rules, 1993 in these words:- "Inter se Seniority of civil servants appointed in the same calendar year. Persons appointed by transfer in a particular calender year shall, as a class, be senior to those appointed by promotion or by initial appointment to such posts in that year, and persons promoted to higher posts in a particular calendar year shall, as a class, be senior to those appointed by initial appointment to such posts in that year."
5 The analysis and comparison of the above provisions shows that there has been various modes of appointment, to the posts, service or cadre. They are:-
(a) Appointment by initial recruitment.
(b) Appointment by promotion.
(c) Appointment by transfer with consent/request of the civil servant.
(d) Appointment by transfer without consent in the interest of public service.
(e) Appointment on deputation.
' For the purpose of present discussion the last two categories are not relevant. So far as inter se seniority between the first two categories are concerned there has been no ambiguity. The officers who are appointed by promotion in a calendar year rank senior to those appointed by initial recruitment. The position has remained the same prior to and after the enforcement of the Seniority Rules, 1993. However, for the determination of inter-se-seniority of those appointed by transfer and those appointed by promotion the formulae has been expressly provided in the Seniority Rules of 1993 for the first time. Under the instructions of ESTACODE, as quoted hereinbefore, there was a reference that in case of appointment by transfer with the consent of the civil servant he shall rank junior most in the new cadre, but that does not mean that such person will remain junior most for ever or for the entire year. After all the person, so transferred, has a considerably long service at his credit and on such transfer he looses the benefits of seniority on the basis of previous length of service but he cannot be penalised to rank junior to those who are promoted during the year after his joining in the new office or cadre. There is certainly a difference between the direct appointees and the appointees on transfer. Both cannot be equated. Rule 6 of the Seniority Rules 1993 has expressly defined the distinction and the appointee on transfer has been given an edge over the appointee by promotion keeping in view the experience and past service that he carries to the new job. Similarly for the same reason the promotees have been given preference over the direct recruits.
6. The learned counsel for the respondent has further added that the Seniority Rule of 1993 cannot be applied retrospectively because the matter in dispute happened in 1992. The point urged has definitely some force but we are unable to find any rule or instruction to the contrary prior to 1993.
There is no clear instruction that the appointee by transfer shall rank equal to the appointee by initial recruitment nor there has been any provision that the promotee shall have any edge over the transferee. The extract from General Principle of Seniority quoted hereinabove rather provide that the appointee by transfer shall carry the previous length of service for retrospective fixation of seniority if such transfer was made without choice and in the interest of public service. Even in case of transfer by choice the civil servant concerned reckons his seniority for the date of joining the new cadre office. If the contentions of the respondent is accepted then the said principle will be violated and such a civil servant shall not reckon his seniority from the date of joining rather he will be compelled to reckon his seniority from the last day of the calendar year. This has never been the desire of the rules or instructions.
7. In consequence of the above discussion, we accept this appeal and direct that the appellant shall reckon his seniority at Lahore Region with effect from 2-5-1992, and therefore, all those appointed or promoted as Income-tax Inspectors after the said date shall rank junior to him.
8 No order as to costs. Parties be informed.