The appellant, Mr. Muhammad Ali, entered into Government service as Assistant (BS-11) when he was appointed as such with effect from 1-10-1985 vide order dated 16-9-1985. He applied for the post of Project Assistant (BS-11) sometime in 1988 and was appointed as such on ad hoc basis vide order dated 1-8-1988. Subsequently, he was regularized as. Project Assistant with effect from 1-8- 1988 vide order dated 3-5-1990. The seniority list was issued by the Directorate General, Local Government and Rural Development Department (respondent No,2) on 6-8-1991 and the appellant was shown at Serial No,161 which indicated that the date of absorption/appointment in the present grade was 1-10-1985. Subsequently, a tentative seniority list was issued on 3-11-1992 by the Directorate of Local Government and Rural Development Department, Multan (respondent No,1) wherein the appellant's date of absorption and promotion as Project Assistant was shown as 1-8- 1988. The appellant submitted representation against this seniority list, and respondent No,2 rejected the representation vide his order dated 25-10-1993. The appeal has been filed against the said order dated 25-10-1993 whereby continuous appointment as Project Assistant was shown as 1-8-1988, instead of on 1-10-1985.
2. The appellant has contended that the final seniority list issued on 6-8-1991 by respondent No,2 was never challenged and could not have been unilaterally changed by respondent No,1 as nobody challenged the same; that the order of granting the seniority to the appellant as Project Assistant from 1-10-1985 cannot be modified or revoked as it had already attained finality; that the impugned order dated 25-10-1993 was passed without giving any opportunity of hearing to the appellant and earlier order could not be reviewed by the same authority i,e, respondent No,2; that no distinction can be made between the assignment of the appellant as Assistant and then as Project Assistant for the purpose of counting his seniority for the reason that no material substantial change was brought out.. in the nature of his assignment when he was shifted from the post of Assistant to that of Project Assistant; and that the appellant could not be deprived of the benefit of seniority at the time of his absorption as Project Assistant without his consent.
3. The appeal has been contested on the ground that the appellant himself applied for the post of Project Assistant and, therefore, was recruited as such on ad hoc basis; that the date 1-10-1985 occurred in the earlier seniority list circulated with letter dated 6-8-1991 through an error which was corrected through the impugned seniority list; that the Directorate-General (respondent No,2) circulated the seniority list for consolidating the seniority lists sent by the Divisional Offices but the error remained unnoticed which was corrected later through the list issued on 3-11-1992; that there is no bar on rectifying the errors. It is further stated that the appellant was recruited through regularisation of his ad hoc appointment afresh as Project Assistant with effect from 1-8-1988; that the posts of Assistants and Project Assistants carry different assignments and according to the Service Rules, 1981, the posts of Assistants and Project Assistants cannot be combined for drawing the combined seniority lists of two different cadres.
4. Arguments were heard and record perused. It was pointed out that according to the circular instructions dated 2-6-1966, the seniority of officials who are transferred from one cadre to another is to be determined in the following manner:-
5. (a) If the transfer from one cadre to another is in the exigencies of public service, the Government servant should be considered to be on deputation from the original group cadre.
(b) In case of persons who want to change their domicile and go to a different group cadre on their own request, the Government servant concerned should get the lowest position in the cadre to which he seeks the transfer."
5. The learned counsel for the appellant argued that the case of the appellant falls under "(b) above as he requested for changing the cadre, but the two conditions of requesting the change of domicile as well as cadre did not exist as the appellant has never asked for change in the domicile.
According to the learned counsel, in case the lowest position in the seniority is assigned to an official covered by "(b)" above, the aforementioned two conditions have to be fulfilled and must co-exist, otherwise the seniority obtaining in the cadre prior to the change in the cadre must be maintained in the new cadre. The learned counsel for the appellant also relied on case cited as 1974 PLC (CST) Note 11 at p. 7 in support of his contention that the appellant though transferred on his own request to a different group/cadre would not lose his seniority as he was not informed about this loss before change in the cadre.
6. There is no dispute about the fact that the appellant himself applied for the post of Project Assistant. He cannot, therefore, escape the consequences of his option. He was appointed to the post of Project Assistant with effect from 1-8-1988. The argument that the conditions of domicile and change of cadre must co-exist before a person seeking transfer to a different cadre is assigned the lowest position in the new cadre is simply based on the subjective interpretation of sub-para. (b) of the instructions dated 2-6-1966 referred in para. 4 above. The provision of P.C.S. Act, 1974 and the rules framed thereunder i,e, P.C.S. (Appointment and Conditions of Service) Rules, 1974 are more specific on this point. According to section 7 of the said Act, seniority on appointment to a service, cadre of post shall be determined in the prescribed manner. This was prescribed under Rule 8 of the said rules which lays down that the seniority of a person appointed to a post in the same grade in a functional unit shall be determined with reference to the date of continuous appointment in a grade. The appellant admittedly was appointed to the post of Project Assistant with effect from 1-8-1988 and, therefore, the question of his appointment as Project Assistant having been made on his own request need not be imported to determine his seniority with 'reference to the aforementioned instructions dated 2-6-1966 for the reason that the date of appointment to the post is the determining factor for seniority under the above mentioned rules.
Moreover, the said instructions cannot be interpreted to be in conflict with the provisions of the rules and the Act. Learned counsel for the appellant argued that even under the Act and the rules referred to above, seniority is to be determined with reference to the date of appointment in the same grade, and since the posts of Assistants and Project Assistants are in the same grade, the appellant is entitled to reckon his seniority with effect from the date of his appointment as Assistant i,e, 1-10-1985. This argument is also not supported by the provisions of the Act and rules inasmuch as under section 7 of the P.C.S. Act, 1974, seniority is to be. determined on appointment to a service, cadre or post: This provision of the law overrides the provisions of the rules as well as the instructions. Even the provisions of P.C.S. (Appointment and Conditions of Service) Rules, 1974 are not in conflict with such law inasmu ch as rule 8 of the said Rules provides for determination of seniority of persons appointed to posts in the same grade in a functional unit. The date of appointment to a grade therefore, is conditional to the grade accruing in the same functional unit.
The post of Assistant is not in the same functional unit in which the post of Project Assistant is included. These two posts have undeniably different sets of rules governing the conditions of their appointment and different feeding cadres both from these posts and to these posts. Learned counsel for the appellant argued that both the posts carry similar assignments. This is factually incorrect. The post of Assistant belongs to office establishment and the post of Project Assistant carries field functions.
7. As to the objection raised by the learned counsel for the appellant that respondent No,2 had no authority to revise the seniority list on his own or that the appellant was not given an opportunity of personal hearing before the impugned seniority list was issued, it has been explained by respondents Nos. 1 and 2 that the impugned seniority list was issued only to correct an error which cannot be termed as the revision of an order and in any case the appeal of the appellant against the impugned seniority list was duly considered and a speaking order was issued on 25-10-1993.
The reliance placed by the learned counsel for the appellant on 1974 PLC (CST) Note 11 at p..7 is not helpful as the transfer in the said case was from the same post of junior clerk from one circle to another whereas in the present case the appellant was not transferred but appointed to the post of Project Assistant.
8 In the light of the foregoing, it is clear that the appointment of the appellant as Project Assistant was a fresh appointment to the said post and his seniority in the cadre of Project Assistant, shall be reckoned with effect from 1-8-1988 the date when he was appointed to the said post. No case has been made out to ante-date his seniority to the date of his appointment as Assistant, or to interfere with the impugned order dated 25-10-1993. The impugned seniority list showing the date of appointment of the appellant as Project Assistant as 1-8-1988 in so far as it relates to the appellant is sustained. The appeal is accordingly dismissed.
Parties be informed.