' FAKHRUDDIN H. SHAIKH (CHAIRMAN).-The appellant has filed this appeal against the respondents in respect of his seniority. During the pendency of this appeal the appellant withdrew his claim as against respondent No. 5, Hence his name was deleted from the title of the appeal.
2. The case of the appellant is that he was appointed as Excise Sub- Inspector on 1-1-1959 vide order dated 29th December, 1958, by the Directorate of Excise and Taxation of Quetta Region. At that time the Sub-Inspectors of Excise and Taxation were governed by the Service Rules dated 28th August, 1952 which were promulgated by the Chief Commissioner of Baluchistan. These Rules provided that no member shall be appointed as substantive Excise Sub-Inspector unless he has passed the departmental examination as prescribed by the Excise Commissioner (rule 11 of the Annexure 'A' of the appeal). By Notification dated 15th September, 1952 the Excise Commissioner, Baluchistan had prescribed Departmental Examination for the Sub-Inspectors. This Notification appears as Annexure 'B' of the appeal. The above Rules and the Notification specifically prescribed that the seniority of the Excise Sub-Inspector shall he determined by the date on which they have passed the departmental examination.
3. The appellant passed the prescribed departmental examination on 8-10-1959 whereas respondents Mohammad Yousuf, Jan Mohammad and Izhar Ahmed passed the same on 6-10- 1960, October, 1961 and October 1961 real reactively. Respondent No. 6 has not passed this examination as yet. In the year 1966 new Service Rules in respect of the Excise Sub-Inspectors were made by the West Pakistan Government according to which the date of continuous appointment and not the date of passing the departmental examination was to be considered fur determining the seniority. The Excise and Taxation Officer, Quetta had some doubt about the applicability of the new Rules to those Excise Sub-Inspectors of Quetta and Kalat Region who were appointed before the coming into force of these Rules. He therefore made a reference to the Board of Revenue of West Pakistan vide his letter dated 22nd January, 1970 (Annexure `E') for a clarification on this point.
The reply of the Board of Revenue was that the Sub-Inspectors appointed before 11-11-1966 (which is the date of the new Service Rules of 1966) shall continue to be governed by the Rules framed earlier to which reference has already been made. This clarification is Annexure 'F' of the appeal, the relevant portion of which may be reproduced here with advantage :- "Being still in operation the departmental examination Rules prescribed by the former Excise Commissioner in Baluchistan the seniority of Sub-Inspectors recruited during the period 14.10-55 to 10.11-66 is to be determined by the date on which an officer passes the departmental examination and those recruited after the promulgation of the service Rules of 1966 from the date of their continuous appointment. The Sub-Inspectors who were recruited during the period from 14-10-1955 10-11-1966 but have not passed the departmental examination are to be shown junior to the ones who have already cleared the departmental examination and have been confirmed as such.
However, the former will be shown senior to the Sub-Inspectors recruited after the promulgation of the West Pakistan Excise and Taxation Department Subordinate Service Rules, 1966."
4. According to this clarification a gradation list was prepared by the Director, Excise and Taxation, Baluchistan vide his letter dated 30th June, 1970 (Annexure 'C'). According to this list the appellant was shown senior to respondents Nos. 3 to 6 on the ground that he had passed the departmental examination earlier although the date of hit initial appointment was latter.
5. A representation was made against this list by the respondent Izhar Ahmed to the Government pleading that the seniority of the parties should be fixed with reference to the date of their continuous appointments. This representation was accepted by the Secretary, Excise and Taxation Department, Government of Baluchistan vide his letter 22nd March, 1973 (Annexure L). Para. 4 of this letter which is relevant is also reproduced hereunder "Since the Baluchistan Excise Service Departmental Examination Rules, 1952 are said to be still operative, those who qualify earlier will supersede those who pass the examination later for purposes of substantive appointment only but their seniority in the grade to be detemined with reference to date of continuous appointment will remain undisturbed."
6. The appellant is aggrieved by this order and therefore filed this appeal on 9.10-1973 before the Service Appellate Tribunal, Quetta from where it was transferred to this Tribunal under the Baluchistan Service Tribunal Act, 1974.
7. Notices were issued to the respondents. Their plea is that the letter of the appointment dated 29th December, 1958 in respect of the appellant says that the appellant shall be governed by the new Rules when formulated. The relevant portion of this letter is as under "Those Sub-Inspectors can be called upon to servo anywhere in West Pakistan and will be governed by the new Service Rules when formulated. The former Baluchistan Excise Service Departmental Examination Rules will be applicable to them."
8. This order is in respect of the Excise Sub-Inspectors including the appellant. It has therefore been argued that in terms of his appointment order the appellant is to be governed by the new Rules I. e, those which were wade in the year, 1966, and accordingly the date of continuous appointment to the post shall be deemed to determine the seniority.
9. The confusion in this case has arisen due to language used in the appointment order dated 29th December, 1958, the relevant portion of which has been quoted above, This order says that the Sub-Inspectors shall be governed by the new Service Rules when formulated, although the order continues to say that the former Baluchistan Excise Service Departmental Examination Rules will be applicable to them, This order has been signed by an Assistant Director of Excise and Taxation, Quetta Region. In our view the condition that the Excise Sub-Inspectors mentioned in the order will be governed by the new Rules when formulated, appears to be redundant, for the simple reason that the Rules framed on 28th August, 1952 in this respect were already operative. The departmental Examination Ruler referred to in the above letter were also framed under the same Rules Hence in the wake of the Rules of 1952, the provision in the appointment letter that the Excise Sub-Inspectors names in the appointment letter shall be governed by the new Rules when formulated, is meaningless. In this behalf a reference had also been made by the Director, Excise and Taxation to the Board of Revenue and the latter had categorically stated that the Sub- Inspectors appointed before 11-11-1966 shall be governed by the Rules made in the year 1952 and that the Rules which bad come into force on 11-11-1963 shall apply to those Sub-Inspectors only who were appointed after this date. In view of this clarification there should have been no doubt as to the principle which governed the seniority of the appellant vis-a-vis respondents Nos. 3 to 6. This principle was accepted by the Directorate of Excise and Taxation and a list was prepared accordingly and promulgated on 19th August, 1970. In our view there was no valid reason for the Provincial Government to have disturbed the order of seniority of this list in the year, 1973. The view of the Secretary, Excise and Taxation Department that the date of continuous appointment should be reckoned for the purpose of determining seniority, is contradicted by his own views in para. 4 of his letter which have been reproduced above, according to which Baluchistan Excise Service Departmental Examination Rules, 1952 were still operative. According to these Rules the seniority was to be determined by the date of substantive appointment while the date of substantive appointment was to be the date of passing the departmental examination. A bare reading of para 4 of the letter of the Secretary would show that the contradiction is apparent on the face of the record. The Departmental Examination Rules, 1952 did not exist independently of the Baluchistan Excise Service Rules, 1952 as the former were framed in exercise of the powers prescribed by the latter. Hence both the Rules existed simultaneously in respect of the Excise Sub Inspectors who were appointed before coming into force of the new Rule in November, 1966. The latter Rules shall not be deemed to apply to those who were appointed earlier i. e. The appellant and respondents Nos. 3 to 6.
10. In view of the above the appeal is allowed. The order of respondents Nos. 1 and 2 dated 31st March, 1973 is set aside with the direction that the inter se seniority list of the appellant vis-a-vis respondents Nos. 3, 4 and 6 as fixed in the earlier list dated 30th June, 1973 shall be restored.