' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).---Two Appeals bearing Nos.18 of 1991 titled as Ghulam Rasool v. Government of Balochistan and others and 19 of 1991 titled as Ali Akbar v. Government of Balochistan are filed. As in both the appeals the issues are common and same law points are involved, therefore, through this joint order both of them can be disposed of easily.
2. In Appeal No,18 of 1991 appellant Ghulam Rasool has raised contention that he was appointed as Tehsildar through order made on 27-12-1972 by Board of Revenue. He was under training while Board of Revenue dispensed with his services through order dated 30-5-1973. Thereafter, in pursuance of M.L.O. 23 he submitted review petition, which was accepted, whereupon he (the appellant) was re-instated in services through notification dated 2-10-1978. Thereafter, he completed remaining period of his training and on completion of the same he was posted as Tehsildar. While on 7-9-1980 final seniority list was issued, wherein his (the appellant) name wrongly appeared at Serial No,166 instead of Serial No,81. Thereafter another seniority list dated 15- 7-1987 was issued, wherein same error was repeated (year is wrongly mentioned, it is 15-7-1985).
Representation was filed, while both the lists were challenged before the Tribunal. During pendency of the same Board of Revenue recinded both the seniority lists through notification dated 25-4- 1988 whereupon his appeals become infructuous. Thereafter another seniority list was issued on 6- 7-1988 wherein his (Ghulam Rasool) name was again shown at wrong place, below the name of officials junior to him. He submitted objection in same respect as no intimation of its result was communicated to him, therefore, he preferred revision petition before Chief Minister on 20-12-1990, which was accepted by him through order made on 20-12-1990. Despite issuance of said order the Department avoided to implement the same. In the circumstances he filed Constitution petition before Honorable High Court. During pendency of petition on 3-7-1991 it was intimated that said order has been withdrawn. Feeling aggrieved of the same he filed present appeal on grounds that in impugned seniority list his name is erroneously shown at said place, while his date of entry in service is also wrongly mentioned as 8-5-1980, rather it was 27-12-1972. While as per relevant Rules any person selected for the post of Tehsildar would be deemed to have been inducted in service on the day when he was selected for the post of Tehsildar and the date of continuous service will be the date when he started his services. As such he has been inducted in services on 27-12-1972, therefore, this date is the date of continuous service. Moreover, the impugned seniority lists are issued in violation of relevant Rules. Furthermore, the then Chief Minister passed order on his (the appellant) representation in capacity of appellate/revisional authority, as the same was not challenged by anyone, thus attained finality as such same can not be withdrawn suo motu. Thus this impugned order of withdrawal is illegal and void, as such liable to be set aside. Furthermore, as per relevant Rules 50% of vacancies have to be filled by initial recruitment and remaining 50% by way of promotion from subordinate staff. This Rule has also been violated and quota meant for promotion has been extended. Thus the officials junior to him (the appellant) were promoted as Tehsildars, this act cause injustice in his favour. As such the same may be declared illegal and void.
He is entitled to be given seniority from the date of his recruitment. The appellant has prayed for setting aside of impugned order made on 15-6-1991 and he be given seniority w,e,f, 27-12-1972, while fresh seniority list be issued after correction.
3. The appeal is strongly contested by the official as well as most of the private respondents.
4. The official respondents i,e, Nos.1 and 2 in their reply strongly denied the contention of the appellant. According to them the appellant was not appointed as Tehsildar rather he was only accepted as candidate and was deputed pre-service training, while he has been re-instated as such. After completion of training he was given appointment as Tehsildar on 4-9-1980. It is further their contention that the appellant, in violation of Rules, submitted revision petition to the Chief Minister, which was accepted. As said order was contrary to law and rules, therefore, the department, seek review of the same, which was accepted and the then Chief Minister withdraw his said order. It is further objected that present appeal is time-barred as the appellant has accepted the terms and conditions of his reinstatement order dated 12-10-1978. He (the appellant) further not challenged the seniority lists issued in 1979 and 1980 in time. They have prayed for dismissal of the appeal.
5. On the other hand the private contesting respondents Nos.47, 17, 18, 30, 39, 43, 46, 61, 63, 75, 92, 96, 67, 64 and 73 in their joint and separate replies strongly contested the appellant's contention.
According to them the appellant was not appointed as Tehsildar rather, he was only accepted as candidate for the post of Tehsildar. Further, the appellant has not challenged the seniority list in time, nor raised any objection on order of his reinstatement in time, as such the present appeal is time-barred. It is further their contention that in seniority list issued in 1980, the name of the appellant does not appear at Serial No,166 rather the name of one Ali Akbar Mengal exists there.
Furthermore, the appellant cannot legally claimed seniority over Tehsildars who have been promoted during years 1966 to 1971 as he was not in service in said period. They have prayed for dismissal. Of appeal. The contention of the appellant (Ali Akbar) in Appeal No,19 of 1991 is nearly the same as of appellant (Ghulam Rasool). According to appellant (All Akbar) he has been appointed as Tehsildar vitae order dated 21-9-1972, while during training period his services were dispensed illegally through order dated 30-5-1973. While afterwards in 1977 in persuance of M.L.O. 23 he submitted review petition, which was accepted whereby he was reinstated as Tehsildar through order dated 2-10-1978. On completion of training he was posted as Tehsildar. It is further his contention that in final seniority list issued on 7-9-1980 his name was incorrectly mentioned at Serial No,166 instead of Serial N6.81, As he was much earlier in service than those officials whose names were shown above his name upto Serial No,81. Thereafter, another seniority list was issued on 15-7-1987, (Year is wrongly mentioned, rather it is 15-7-1985), wherein his name was again incorrectly mentioned at wrong place. These lists were challenged, while during pendency of service appeals Board of Revenue recinded both the impugned seniority lists, due to the same his appeal become infructuous. Afterwards on 6-7-1988 another tentative seniority list was issued, wherein the error was again repeated, on which he submitted objections, which were overruled.
Whereupon he (the appellant) filed revision before Chief Minister who accepted the same through order made on 20-12-1990. In view of the same he approached the Department but official respondents avoided to implement the orders made on 20-12-1990, 8-2-1991 and 27-2-1991. While during pendency of writ petition it was for the first time intimated that Chief Minister has withdrawn the above mentioned orders. He has prayed for setting aside of order made on 15-6-1991 and also prayed that seniority be given to him w,e,f, -21-9-1972 being date of continuous service, with direction to official respondents for issuance of fresh seniority list, placing his name at correct place. According to him as per relevant Rules the individual selected for the post of Tehsildar would be deemed to have been inducted in the service from the date of his selection as such the date of continuous service will be counted when the person started service. In view of the same his date of induction in service is 21-9-1972, which would be date of his continuous service and since then his seniority is to be computed. The impugned seniority lists are issued in violation of relevant Rules, thus liable to be set aside being illegal. Furthermore, there was no occasion to withdraw the orders passed by the Chief Minister on his (the appellant) representation being appellate/revisional authority, after lapse of six months, which has been done without any legal justification. Thus of no legal effect. Moreover, in violation of relevant Rules the quota meant for promotion has been extended, which also effected his (the appellant) right. The appellant has prayed for setting aside of impugned order made on 15-6-1991, he be given seniority w,e,f, 21-9-1972 with back benefits, further official respondents be directed to issue fresh seniority list placing his (the appellant) name at correct place.
6. Respondent No,2 filed reply while respondent No,1 relied on the same. Both the official respondents denied the contention of the appellant. It is their contention that as the appellant has not challenged the reinstatement order, rather accepted its terms and condition, further also not challenged the seniority lists issued in 1979 and 1980, nor file appeal to next higher authority in time as such this appeal is time-barred. Further, the appeal is also based for non-joinder of necessary parties, and also misjoinder of parties. It is further their contention that the appellant was only accepted as Tehsildar candidate and afterwards re-instated as such, while on completion of pre- service training he was regularly appointed on 8-5-1980. As such seniority was also assigned to him from said date i,e, 8-5-1980. Furthermore, the appellant has obtained orders from Chief Minister personally in violation of law and Rules, which were afterwards withdrawn by the Chief Minister on request of the Department. They have prayed for dismissal of appeal being baseless and without merits.
7. The remaining private respondents in their separate and joint replies strongly contested the contention of the appellant, rather raised nearly same contention as of official respondents.
According to them the present appeal, is time barred further the appellant has not challenged the seniority list and has not filed departmental appeal in time, therefore, present appeal is not maintainable. Further, the appellant was only accepted as Tehsildar candidate, while he was reinstated as such afterwards. His (the appellant) seniority has been correctly fixed from the date when his services were regularized after completion of training. Furthermore, there is no violation of quota meant for filling the post of Tehsildars by way of initial recruitment and by way of promotion.
As such the Tehsildars who were promoted during years 1966 to 1971 cannot become junior to the appellant, who was selected as such rather candidate in 1972. They have also prayed for dismissal of appeal being without merits.
8. The perusal of the record reveals that during pendency of present appeals two more seniority lists of Tehsildars have been notified on 31-12-1991 and afterwards on 1-10-1998. The appellants still feel aggrieved with them, therefore, they have placed 'both these lists on record. Two applications dated 14-3-1992 and 15-4-1992 have been filed in both appeals, whereby list issued in 1991 has been challenged with prayer that the same may be deemed to be challenged in present appeal.
As far as list issued in 1998 though have not been challenged by the appellants, rather a copy of the same has been produced during course of arguments which is present on record. In same respect an application under Order I, rule, 10 C.P.C. Has been filed by the appellants on 21-5-1999, It is apparent from record that though there is no bar nor there is any injunction issued whereby the Department has been restrained from issuing new seniority lists, as such the concerned department is fully competent to fix the seniority and issue lists as per requirement under law. But as far as prayer of 'the appellants to the effect that the said seniority lists be deemed to be challenged and impugned before the Tribunal in present appeals is concerned, though as per relevant law the appellants are bound to challenge the same before competent Authority within prescribed time, but in present case the same his not been done so. But perusal of the record reveals that both the abovementioned applications have not been disposed off by the. Tribunal in relevant time, which is quite unfortunate. Thus in view of the same and keeping in view the present circumstances, though the appellants have not challenged the said lists in time before departmental authorities, for which they were bound by Rules, but as this also occurs some how or the other due to the non-disposal of the applications in time by this Tribunal, as such the fault is on the part of the Tribunal for which the parties have not to be suffered. As the grievance is the same i,e, wrong fixation of seniority, therefore, in case the said lists are deemed to be challenged at this stage before the Tribunal. They can easily be disposed off alongwith present appeal. The cause of action is the same and decision in present appeals naturally effect the subsequent seniority lists.
Further, it will cause multiplicity of litigation, which is to be avoided. Therefore, the seniority lists issued on 31-12-1991 and 1-10-1998 are also deemed to be impugned before the Tribunal and will be decided alongwith the previous impugned lists. It is to be noted that the matter is too old which has to be decided on merits once and for all, apart from technicalities.
9. In present case the main issue is the date from which the seniority of the appellants have to be counted. As per appellants they have been appointed as Tehsildars through orders dated 27-12- 1972 Annexure A (in case of appellant. Ghulam Rasool) and dated 21-9-1972 Annexure A (in case of appellant Ali Akbar). While services of both of them were dispensed through order dated 30-5-1973, (Annexure B). While afterwards appellant Ghulam Rasool was reinstated through notification dated 2-10-1978 Annexure C-1, and appellant Ali Akbar was reinstated through notification dated 2-10- 1978, Annexure C. The appellant claim their seniority from the date of their appointment i,e, 21-9- 1972 and 27-12-1972. As according to them they were appointed as direct Tehsildars and as they were reinstated in services and the period of training, which they already undergone, has been counted on their reinstatement, therefore, their old lien and privileges in services remains and had not been disturbed. Therefore, the Department has wrongly assigned seniority to them from the date of completion of training i,e, 8-5-1980 (in case of appellant Ali Akbar) and from 10-9-1980 (in case of appellant Ghulam Rasool). As such the appellants claim seniority from the date of their initial appointment. This contention is strongly contested by the respondents, officials and private both. As per appointment order dated 27-12-1972 appellant Ghulam Rasool has been accepted as direct Tehsildar and he is required to undergo prescribed training as per Rules, whereafter he be declared as qualified to hold the post of Tehsildar subject to availability of vacancy. While in case of appellant Ali Akbar the order dated 21-9-1972 speaks to the effect that appellant has been accepted as direct Tehsildar candidate, and he also has to undergo the required training. But before completion of their training period their (the appellants) services were dispensed on 30-5- 1973: Thereafter, they (the appellants) were reinstated through order dated 2-10-1978. There is admittedly a break in services of the appellants. Though appellants have relied upon a judgment of Honourable Supreme Court of Pakistan made on 4-6-1983 in case titled as Nasim Ahmed v.
Asad Khan. In the same the relevant Rules are discussed but in present case the point for determination is some how different. In present case the order of reinstatement is to be considered and also this position has to been seen that what will be the effect of period during which the appellants remain out of service i,e, from 1973 to 1978.
10. The perusaf of both the reinstatement orders reveals that the order has been made with immediate effect. Further it is also included in said order that this reinstatement order does not entitle the appellants to any damages, compensation or arrears of emoluments or other benefits for the period they remain out of service. As per this order the appellants are not entitled for any sort of benefits for the period when there is break in their service. The first inference which can be drawn from these orders is that the appellants are not entitled for claiming any benefit for the period when they were out of service, not even they can claim seniority in the services over other members of the service, The appellants are silent in respect of this aspect of their reinstatement order. Further, they have accepted this order as a whole. They have not challenged any portion of the same in relevant time nor afterwards before departmental authorities, neither at present.
Furthermore, there is nothing on record that the said intervening period was ever treated as period included in their service, nor there is any order of competent authority, whereby said period is declared to be treated as leave. In view of the same at this stage no benefit can be gained by the appellants in respect of said period.
11. It is further contention of the appellants that as per relevant Rules they were deemed to have been inducted in service on the day when they were selected for the post of Tehsildar, while the date of their continuous service would be the date when they have joined rather started the services. As such they were selected in the services on 21-9-1972/27-12-1972 and these are the dates which are material and to be considered while counting their seniority. But contrary to the same of their continuous appointment has been shown as 8-5-1980/10-9-1980 in impugned seniority lists. This is the main grievance of the appellants. In said respect Rules Nos.8, 9 and 10 of West Pakistan Tehsildari and Naib Tehsildari Rules, 1962 are relevant. Rule 8 relates to training and departmental examination, while Rule 9 is in respect of seniority and Rule 10 is about period of probation. The perusal of these Rules reveals that Rule 8 speaks about a person who is selected for appointment to the service, while rules 9 and 10 are in respect of members of services. Thus two terms are used in the said Rules i,e, "Selected, for appointment" and "Members of the service."
' Both the terms are used in different senses. As such the selection cannot amounts to appointments in rule 9 the term "selection" is not used rather term "appointed" is used. Now the question occurs that what will be the date of appointment? Either it would be the date when a person is selected for appointment or when he completes his training and pass departmental examination. Apart from all other things instantly we have to only to consider the order whereby the appellants were selected for the services. As per said orders dated 27-12-1972 and 21-9-1972 both the appellants were accepted as Tehsildar Candidates and they have to undergo to the required training, whereafter they be declared to be qualified to hold the post of Tehsildar. As such they were only candidates and not members of service. After reinstatement they were again required to complete their remaining portion of the training. In addition to the same it is to be noted that on completion of training, the appellant (Ghulam Rasool) was appointed as Tehsildar through order issued on 4-9-1980. While appellant (Ali Akbar) was appointed as Tehsildar through order issued on 8-5-1980. It is clearly mentioned in the same that their (the appellants) services as Tehsildar will reckoned from the date of assumption charge of his assignment. Both of them were further directed to clear the departmental examination. Now these orders amounts to appointment order of the appellants. It is clear that the services of appellants as Tehsildar shall be considered rather calculated from the date when they assumed the charge as such. Moreover, this order has not been challenged anywhere at any time and stage by the appellants.
12. It is the further noted that after selection the appellants were under training while their services were dispensed. During said period i,e, 21-9-1972/27-12-1972 to 30-5-1973, they never hold the post of Tehsildar nor perform their duties as such, rather they were under training and only after completion of the same they could hold the post. As such when they hold the post then their services are regularised and from said date their seniority is to be counted. Mere selection in the year 1972 does not confer any right, of even of seniority, in favour of the appellants, admittedly when there is clear break in their services from 1973 to 1978. This period cannot be included in their services nor there is any order in favour of the appellants, in same respect, neither they tried to obtain any favourable order in same respect in relevant time by approaching competent Authority.
Now at this stage they cannot claim any benefit in same respect. Thus in view of above discussion the said intervening period cannot be counted in services of the appellants. The appellants have further raised contention that there is also violation of quota meant for initial recruitment and for promotion. Excess quota has been given to promotion, in violation of respective Rules. This act also effects their (the appellants) rights. The respondents denied the same. In this respect nothing has come on record. The appellants have failed to specify the instances when such quota has been violated which effects their right. This contention also remains unproved.
13. Apart from all these facts in present appeals the appellants are mainly aggrieved of orders dated 15-6-1991, whereby the acceptance/approval order dated 11-12-1990 on appeal/representation submitted by them (the appellants) by the Chief Minister were reviewed and withdrawn, being contrary to relevant Rules. The perusal of the record reveals that after issuance of seniority list in year 1988 the appellants directly submitted representation to the then Chief Minister on 10-12-1990. Both the petitions/representations were accepted by the Chief Minister through order dated 11-12-1990 (Annexure F-2/G/F-II/G). The perusal of the same reveals that in case of appellant Ali Akbar it is ordered that appeal accepted, reinstated from 2-2-1972 and will get seniority w,e,f, 2-2-1972, no back financial benefits. While in case of appellant Ghulam Rasool revision is accepted, re-instated since 27-12-1972 and will get seniority w.e.f 27-12-1972, back benefits not approved. These order hate been got reviewed by the Department, while the appellants are aggrieved of the same. According to them the said orders can not be suo mote withdrawn after lapse of six months as no one challenged the same, thus it had attained finality.
This contention of the appellants is not correct, rather the official respondents have produced copies of correspondence, whereby the said orders have been required to be reviewed by the Chief Minister. Thus the Chief Minister being the authority has the power to review his own orders, there is no legal bar on the same. As the Department has not reviewed the said order, now it is the appellants who have to establish that the said orders are to be restored while their seniority is to be fixed from the date of their initial recruitment i,e, 21-9-1972 and 27-12-1972. It is fully discussed in foregoing paras, but the appellants have failed to establish their contentions, on legal as well as on factual aspect.
14. Apart from technical and legal defects mentioned above the appeals also failed on merits. The appellants have not succeeded to establish their contention. Their seniority has been correctly fixed by the departmental i,e, from 8-5-1980 in case of appellant Ali Akbar and from 10-9-1980 in case of appellant Ghulam Rasool, no interference is required therein. The appellants have failed to Make out any grounds for acceptance of their appeals. In view of above discussion both the appeals bearing Nos.18 of 1991 and 19 of 1991 are hereby dismissed being without merits. Parties are left to bear their own costs. File after, completion be consigned to record.