1. MUHAMMAD DAUD KHAN (CHAIRMAN).-The appellant having qualified in the Central Superior Service Examination in 1933, was appointed as Cantonment Executive Officer in Pakistan Military Lands and Cantonment Service. Class II vide order of appointment Letter No. 108/2/G/D-5-49 dated 24-12-53. The appointment, inter alia, was on probation, for a period of not less than 2 years with effect from the date on which the appellant reported for the duty: Having completed the requisite training of sex months, he was given an independent charge of the post of Cantonment Executive Officer.
2. In accordance with Ministry of Defence Office Memorandum No. 81/4/ G/D-5/49 dated 2nd November, 1955 Executive Officers of Cantonments other than those mentioned in (b) (ii) of the aforesaid memorandum were classified as Class I Junior scale. The memorandum were classified that the classification of the service of officers the Pakistan Military Lands and Cantonment Service for the period prior to the date of issue of the memorandum will be determined in accordance with the orders previously applicable.
3. As a result of reference to the Public Service Commission, the petitioner was appointed to the junior scale, in Class I service with; effect from 21-4-59. Later, the date of appointment was re fixed as from 21-11-55, vide Ministry of Defence Memorandum No. 108/11/13-5/55 dated 13th December 1960.
4. It was further provided that the case of promotion prior to 2-11-55 and fixation of seniority under rule 8 of the Pakistan Military Lands and Cantonment Service (Class I) Probation Training and Seniority Rules, 1957, was, under consideration. Having passed the Departmental Examination in accordance with the Rules, he was confirmed in Class I Service, (Junior scale) with effect from 2-11- 55.
5. Respondents Nos. 3 to 6 were recruited to the service (junior scale), with effect from 22-10-56, 13- 12-56, 18 10-56 and 3.4-1958 respectively and confirmed from the respective dates of appointment.
6. In the seniority list corrected up to 30-6-1971 the plaintiff was shown (at Serial No. 13) senior to the respondents (3-6) whose representations were rejected. However, as a result of the representation made by respondents Nos, 3-6, the petitioner was placed junior to them. The dates of appoint-- ment of the respondents are as under: No.3122-10-1956 No. 413-12-1956 No. 51 18-10-1956 No. 6a3-4-1958 The reasons, as indicated in Q. M. Gs. Branch (M. L. and C. C. Direct--orate's Letter No. 10/12/G/AD(B)/71 dated IC-4-72 are that the petitioner appointed to a Class 11 poet on 3-2-54, was promoted to Class l post of Executive Officer in the same service with effect from 21-4-59 and that there after he was promoted to Class I Junior Scale of the PML and C Service with retrospective effect from 2-11-1956 and that the mentioned above, were appointed by direct recruitment with effect from the date shown against each and that in view of the fact that they were appointed to Class I posts in PML and C Service in 1956 and 1958, when he was holding a Class II post, they had acquired a right to seniority above all Class II officers, (including the petitioner) which right could not have taken away, because of the petitioner's subsequent promotion to Class I post with retrospective effect from 2-11-55.
7. The representation of the petitioner against a show-cause notice for reification of seniority as indicated above was turned down by respondents Nos. 1-2.
8. It is contended on behalf of the petitioner:
(i) That the respondent Government failed to distinguish between, 'Prop motion' and 'up gradation' of the posts.
(ii) That the respondent Government, erroneously came to the conclusion that the petitioner eras promoted to Class I post with retrospec--tive effect.
(iii) That the rights having been confirmed and enjoyed for about 16 years, could not be disturbed and that the Government could not be allowed to approbate and reprobate.
(iv) That the Government illegally considered representations of res--pondents Nos. 3 to 6, who after rejection of earlier petitions and long silence over a period of 10 years were estopped.
(v) That the Government, illegally ignored earlier appointment and confirmation of the petitioner in Class I (junior) and also his promotion to Class I (Senior Scale) earlier than those of the respondents 3 to 6.
(iv) That the provisions of rule 22 of the P. M. L. and C. Service Rules and rule 8(4) of the Pakistan P.
9. M. L. and C. Service (Class I) Probation, Training and Seniority Rules, 1956, have been violated.
10. It has therefore been prayed that the impugned order contained in Memorandum No. 101 /12/G/AD (B)/71 dated 18-11-72, in so far as it disturbs the seniority of the petitioner, be declared illegal, inoperative, void, mala fide and it may further be declared that the petitioner is senior to respondents Nos. 3 to 6 in PML & C Service (Class 1).
11. The petitioner further prays that any promotion or consideration of such promotion of respondents Nos. 3 to 6 prior to the promotion of the petitioner should be declared illegal etc. On behalf of the respondents Nos. 1-4, it is argued:
(i) That the appeal is hit by proviso (b) to section 4(1) of the Service Tribunal Act, 1973, as no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade.
(ii) that the Pakistan Military Lands and Cantonment Service Class I and PML & C Service Class II was amalgamated and constituted into one service PML & C Service Class I vide Letter No. 81/4/G/D-5/48 dated 2-11-55. .
(iii) That the up gradation of the cadre did not imply that the existing member of that cadre attained the status of Class I and that if the promotion was to take place in the manner in which the appellant intends, he would have been promoted to Class I, on the same day when the orders of up gradation issued.
(iv) That the case of promotion of the appellant (alongwith respondents Nos. 7 & 8) was referred to Government and FPSC and that they were considered unfit for promotion to Class I and had to wait until 21-4-59 when the P. S. C. approved the promotion which is indicative of the fact that the petitioner was in Class II whereas respondents Nos. 3-5 had already joined Class I cadre in 1956 and No. 6 who joined on 13-4-58.
(v) That the Government did not approbate and reprobate, but merely corrected an obvious order in the matter of fixation of seniority and that there is no question of estoppel in rectifying any mistake or error.
(vi) There is no violation of any Rule or Rules.
12. Respondent No. 4 further argued that he did not grudge the concessions allowed to the appellant, but they should not infringe or disturb his rights.
13. We have heard the arguments in detail, in our view the decision in this case would rest on the correct interpretation of the Ministry of Defence Office Memorandum No. 81/4/G/D-5/49 dated 2-11- 55, sanctioning the classification and prescribing the scales of pay in respect of the Pakistan Military Lands and Cantonment Service as indicated therein, and Ministry of Defence Office Memorandum No. 108/R/D-5/55 dated 13-12-1960 Gazette Notification No. 71/61 relating to promotion of the petitioner and others mentioned therein. It is significant to note that the words 'up gradation' or 'reclassification' have not been used in Defence Ministry's Office Memo--randum dated 2-11-1955.
14. The word 'up gradation's used in relation to a post or incumbent thereof and 'reclassification' in relation to an existing 'service'. Reclassification would have implied retrospective effect'. Neither of the two expressions have been used in the memorandum dated 2-11-55.
15. In the present case, para 3 of the aforesaid Office Memorandum indicates that the classification of the service and its incumbents for the period prior to the date of issue of the orders would be determined in accordance with the orders previously applicable. No retrospective effect to classification or application of the orders was intended to be given thereby implying that the order in regard to the "Officer of the PML & C Service" would apply from the date of issue of the aforesaid orders.
16. There is no indication in these orders that the cases of the 'existing incumbents, in various tiers or any tier of the (defunct) (Service), would be decided separately for absorption in the new service.
17. The now Service comprises:
(a) Administrative appointments. (b) D. M. L. & C. (if) D. D. M. L. & C.
(b) Class I (Senior Scale).
(ii) D.D.M.L.&C.
(ii) All M. E, Os.
2. All C. E. Os. of cantonments of Peshawar Newshara, Rawalpindi and Lahore.
(c) Class I (Junior Scale).
18. Executive Officers of Cantonments other than those mentioned in (b) (lf) above.
19. That being the position, it would have to be assumed, that on the cons--titution of the new service, every existing members of the (defunct) service, Ipso facto, became a member of the new service in the corresponding cadre. Although, technically, the status of the incumbents was raised and higher emoluments were allowed, no formalities in regard to 'promotion' were to be observed or provided for. Up gradation and Classification were in the nature of conversion of the existing service into a new one as provided for in the Defence Ministry's Office Memorandum dated 2-11-55.
20. Thus there was need to refer the case to the FPSC treating it as a promotion case. In fact there was no rule in regard to promotion from Class I to Class I (Junior Scale), on the basis of which the case could be considered. Further, as is clear, from the facts of the case, the petitioner was still on probation and had not completed even the period of two years in the defence service.
21. In case the intention was to treat the case as one of promotion in the ordinary course, then a similar procedure and formalities laid down in the Rules, had to be followed in regard to other categories or tiers of the service viz the senior scale and the administrative appointments. It is not the case of respondent No. I that a similar procedure was adopt in respect of all the tiers of service.
22. It is not therefore understood, as to why a different procedure was adopted in respect of one tier of service. This particular tier being the lowest in the now service by converting Class II tier, which having ceased to exist there was technically no question of formal promotion.
23. Respondent No. 1, having treated the case as one of 'promotion and having promoted the petitioner to the junior scale with effect from 2-11-1955, and having confirmed him from the same date, inducted him into the now service (Class I Junior) from the date of constitution. Defence Ministry's O. M. No. 108/R/D-5/55 dated 12-13-60 refer. Neither of the two orders has been cancelled and the vested right, including seniority created thereby holds the field. The two orders are not in the nature of concessions.
24. Persons, who were not in service on 2-11-1955, on which date the peti--tioner held the post in the new service in a substantive capacity, cannot be declared senior to the appellant.
25. Accordingly, we hold that the appellant continues to be senior to respondents Nos. '-6 in the junior scale and the No. IOl/12f`G/AD/71, dated 18-11-1972, disturbing the seniority of the appellant is hereby vacated.
26. As regards the other prayer, that any promotion of respondents Nos. 3-6 prior to the promotion of the petitioner should be declared illegal, we consider that the petitioner has no cause of action presently.