' SYED JAMSHED ALI, J.---The final seniority list of Civil Judges corrected up to 31-8-1992 and the order, dated 12-7-1993 of the Government of the Punjab rejecting .The representation of the appellants directed against the said seniority list have been assailed in this appeal which arises out of the following circumstances.
2. On the requisition of the Government of the Punjab, for recruitment to 29 posts of Civil Judges, the Punjab Public Service Commission (hereinafter referred to as the Commission) issued a public notice in the daily Nawa-e-Waqt on 19-12-1986 inviting applications for the aforesaid post. As a result of, the process of selection, the Commission declared 39 candidates as successful including the appellants. However, since 29 posts were available the Commission recommended 28 candidates for appointment as Civil Judges on 19-8-1987. They were appointed as Civil Judges on 16-1-1988 (hereinafter referred to as the first batch). No recommendation was made in respect of one post falling to the quota of the disabled persons. Meanwhile, on 13-7-1987 the Government of the Punjab sent another requisition to the Commission for recruitment to 50 posts of the Civil Judges. The appellants, accordingly approached the Government of the Punjab for being considered for appointment against the aforesaid 50 posts. Having failed to get relief the appellants and three others approached High Court, Lahore in Writ Petition No,586 of 1988. Their case was that the 50 posts for which requisition had been sent to the Commission before finalization of selection 29 posts fell within the scope of "additional vacancies" within the meaning of Regulation No,2(c) of the Punjab Public Service Commission Regulations, 1987 and, therefore, they were entitled to he appointed against the said vacancies. This writ petition was dismissed vide order, dated 5-7-1989. The appellants and one Shahzada Slaeem then filed I.C.A. No,143 of 1989 which was disposed of on 25-2-1990 with the following direction:-- "Having regard to the facts and circumstances of the present case and keeping in view the past practice, the Commission is directed to recommend the case of the appellants and respondents Nos.3 and 4 for appointment as Civil Judges to the S&GAD Department, Government of the Punjab, who shall adjust these persons subject to future vacancies. To this extent the appeal is accepted and the impugned order of the learned Single Judge is set aside, but there shall be no order as to costs."
3. The Government of the Punjab challenged the aforesaid order in C.P.S.L.A. No,66-L of 1991 which was dismissed by the Honourable Supreme Court vide order, dated 5-5-1991. Meanwhile, the appellant and three others were appointed as Civil Judges vide Notifications, dated 17-10-1990 and 26-12-1990. The dates of appointment of the five appellants, as indicated in the impugned seniority list are 10-12-1990, 31-1-1991, 31-1-1991 , 30-1-1991 and 12-12-1990 respectively and they figure respectively at Serial Nos.385, 387, 389, 390 and 391.
4. During the litigation aforesaid, 50 vacancies were filled in, in August 1988 and October, 1989 (hereinafter referred to as the 2nd and 3rd batch). In the draft seniority list issued on 2-6-1992 followed by another list dated 25-6-1992 the appellants were placed below the officers appointed in the 2nd and 3rd batch and after inviting objections the final seniority list as on 31-8-1992 was issued.
4-A. The appellants made a representation against the said seniority list which was rejected vide order, dated 12-7-1993 of the Government of the Punjab. The final seniority list and the aforesaid final order are the subject-matter of this appeal.
5. Initially the Province of the Punjab through the Secretary Services and the Additional Chief Secretary were party to the appeal alongwith the private respondents. In the parawise comments submitted on behalf of the Government of the Punjab, the position taken was that in accordance with the judgment of the learned I.C.A. Bench of the High Court, Lahore the appellants were appointed as Civil Judges against the future vacancies that occurred after 25-2-1990 and, therefore, they were not entitled to reckon their seniority with the batch of 28 Civil Judges. After the promulgation of the Punjab Judicial Service Rules, 1994. The Province of Punjab was substituted with the Registrar, Lahore High Court, Lahore, the Appointing Authority under the aforesaid Rules. A written statement has been filed on behalf of High Court according to the contents thereof this appeal is not being seriously contested because of its earlier stance reflected in the letter, dated 2- 6-1992 addressed to the Government of the Punjab, S&GAD Department that the appellants apparently belonged to 1988 batch. -
6. The learned counsel for the appellants contends that in accordance with the judgment of the learned I.C.A. Bench of the Lahore High Court the appellants were adjusted in 1990 against the additional vacancies of requisition for which had been sent to the Commission by the Punjab Government before selection against the 29 posts was finalized, and therefore, they shall be deemed to have been appointed with the first batch of 28 officers. And, in accordance with the rule 8 of Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974 and Rule 9 of the P.C.S. (Judicial Branch) Service Rules, 1962 they were entitled to be placed above the officers of 2nd and 3rd batch immediately below 28 officers of the 1st batch Reliance was placed on Pilla Sitaram Patrudu and others v. Union of India and others (1997 PSC 887).
7. The appeal is, however, resisted by Ch. Mushtaq Masood, Advocate and Mr. Farooq Amjad Mir, Advocate who represent officers of the 2nd and 3rd batch. The emphasis of the learned counsel for the contesting respondents has been that within the scope of the order passed by the learned I.C.A. Bench, appellants' appointment shall be deemed to have been made against future vacancies and not against the additional vacancies which stood filled in before the appointment of the appellants. Therefore, it cannot be urged on their behalf that the appellants were recruited alongwith the first batch of 1988 to claim seniority alongwith the said batch. It was further contended that the contesting respondents were not party to the said I.C.A. And, therefore, the observations and directions recorded in the said judgment were not binding on them.
8. We have considered the submissions made by the learned counsel for the parties. The undisputed fact is that before the selection to the originally notified 29 posts was finalized, requisition for 50 posts had been sent by the Government of the Punjab on 13-7-1987 within the meaning of the Punjab Public Service Commission Regulations, 1987 these were additional vacancies and were required to be filled in the recommendees of the same batch. It is not disputed that the appellants were appointed in 1990 on the basis of the competitive examination held by the Punjab Public Service Commission in the year 1987. If because of erroneous interpretation of the aforesaid Regulations, the appellants were not appointed, even though declared successful by the Commission, they cannot be made to suffer. The Appointing Authority i,e, the High Court has conceded that the appellants "apparently" belonged to 1988 batch. We may also observe that the learned I.C.A. Bench of High Court clearly directed their adjustment against future vacancies which cannot be construed as appointment against future vacancies as is being canvassed by the learned counsel for the contesting respondents. We may also observe here that appointment and seniority are entirely two different things. Delayed appointment of the appellants could not, therefore, affect their right to seniority in accordance with the rules.
9. At the time of appointment of the appellants and the contesting respondent, the Punjab P.C.S. (Judicial Branch) Service Rules, 1962 were in force, rule 9 prescribed the mode of determination of the seniority, clause (a) of Rule 9 aforesaid which is relevant for the purpose of this appeal is reproduced hereunder:-- "(a) In the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission provided that persons selected for the service in an earlier selection, shall rank senior to the persons selected in a later selection."
' A plain reading of the said rule shows that it is the merit assigned by the Public Service Commission which is a determinative factor. It also shows that persons selected in an earlier selection, shall rank senior to the persons selected in a later selection. The basis of appointment of the appellant is the selection made by the Public Service Commission in 1987 while the contesting respondents of the second and third batch were picked up in a later selection.
10. We are, therefore, clearly of the view that the appellants were selected with the officers of the first batch of 1988 on the basis of the same competitive examination and are, therefore, entitled to claim seniority alongwith the said batch before the officers selected in second batch in August, 1988 and the officers selected in third batch in October, 1989, as the case clearly appears to be covered by rule 9 of the P.C.S. (Judicial Branch) Service Rules, 1962.
11. For what has been stated above, this appeal is allowed. It is directed that final seniority list up to 31-8-1992 shall he corrected by placing the appellants immediately below the first batch of 28 officers, above, the officers of the second and third batch of 1988 and 1989. No order as to costs. /Order accordingly.