' MUHAMMAD NAWAZ ABBASI, J.---This appeal under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 31-7-1997 passed by Balochistan (Subordinate Judiciary) Service Tribunal, Quetta.
2. Abdul Rashid Umrani, appellant, Zaheer-ud-Din Kakar, respondent No,2 herein and one Muhammad Hanif, were appointed together as ad hoc Civil Judge on the recommendations made by the Selection Committee of the Judges of High Court of Balochistan on the basis of merit list prepared by the Committee, on ad hoc basis vide notification dated 29-12-1988 and subsequently, by virtue of notification dated 12-4-1992 they were regularized from the date of their initial appointment. The Government of Balochistan circulated the provisional seniority list of the Civil Judges in which the appellant was shown junior to the respondent No,2 in the present appeal. In consequence to the representation made by the appellant, the Government of Balochistan changed the seniority position of the appellant in the final seniority list published on 12-4-1993 by showing him senior to respondent No,2 namely Zaheer-ud-Din Kakar. The said respondent challenged this change in the final seniority list through a departmental appeal provided under Balochistan Civil Servants (Appeal) Rules, 1983. The Secretary S&GAD, Government of Balochistan rejected his appeal vide order dated 2-1-1996 with the observation that the seniority of the officers who were inducated into Government service on the same date was to be fixed on the basis of their date of birth. Zaheer-ud-Din Kakar, respondent No,2, being dissatisfied with the above decision preferred an appeal before the Balochistan (Subordinate Judiciary) Service Tribunal, Quetta established in the High Court of Balochistan and the learned Tribunal while declaring him senior to the appellant, allowed his appeal through the impugned judgment. The service appeal was not pressed against Muhammad Hanif, before the Tribunal, therefore, he was not impleaded as a party in the present appeal.
3. Leave was granted in this appeal vide order dated 19-8-1998 to consider the following question:- - "Whether seniority fixed by the Selection Committee at the time of ad hoc appointment of contesting Judicial Officers would be carried ahead even after regularization or rule of age would be determining factor, requires in-depth examination. Accordingly leave to appeal is granted to consider this aspect".
4. The learned counsel for the appellant has contended that the seniority of Civil Judges inter se in the present case would not be governed under rule 9 of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984 as the said rule would apply only in cases in which the appointment is made through selection by the Public Service Commission whereas the Civil Judges in the case in hand, were initially appointed on ad hoc basis and subsequently they were regularized by the competent authority without referring them to the Public Service Commission and thus their seniority inter se would be governed by the t ule of senior in age. The learned Advocate-General Balochistan and the learned counsel representing respondent No,2 on the other hand have submitted that the above named Civil Judges were appointed against the vacant posts on ad hoc basis on the recommendation made by the Selection Committee of the Judges of the High Court and in the merit list prepared by the said Committee, the name of Zaheer-ud-Din Kakar, respondent No,2 was at serial No,1, therefore, he was treated senior to his two colleagues in terms of rule 9 of the above Rules. The rule in question provides as under:- "Seniority.---The inter se seniority of the members of the Service shall be determined 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 later selection.
' Explanation-I.---If a junior officer in lower post is promoted to a higher post temporarily in the public interest even though continuing late permanently in the higher post it would not adversely affect the interest of a senior in the fixation of his seniority in the higher post.
' Explanation-II.---If a junior officer in a lower post is promoted to a higher post by superseding a senior officer and subsequently that officer is also promoted for the same post the officer promoted first shall rank senior to the officer promoted subsequently.
' Explanation-III.---A junior officer appointed to a higher post shall be deemed to have superseded a senior officers only if both the junior and senior officers were considered for the higher post and the junior officer was appointed in preference to the senior officer".
5. The seniority of the members of judicial service is determined under rule 9 ibid in accordance with order of merit assigned to them by the Public Service Commission, if their selection is made by the Commission and the persons selected in an earlier selection shall rank senior to the persons selected in the later selection. The "Commission" for the purpose of the Balochistan Civil Judges Service Rules, 1984 as defined in rule 1 (a) of the said Rules, means "Balochistan Public Service Commission" established under the said rules. The recruitment against the posts of Civil Judges is made in accordance with the method provided in rule 5 of the above Rules as under:-- "Method of recruitment.---Appointments to the Service shall be made by initial recruitment on the recommendations of the Commission based on the result of a competitive examination conducted by it in the subjects specified in the Appendix to the rules."
6. The selection made by the Public Service Commission is not synonymous to the selection made by a Departmental Selection Committee and is not one and the same thing, therefore, rule 9 ibid would not be invokable in the case of selection made by an authority other than the Public Service Commission. The seniority of the selectees of Public Service Commission shall be governed on the basis of order of merits assigned to them by the Commission notwithstanding the different dates of their recommendation and the appointment whereas incumbents of the posts of Civil Judges who are pointed without the intervention of the Public Service Commission and following the prescribed method, cannot claim fixation of seniority inter se on the basis of principle embodied in the above rules. The contestant Civil Judges in the present cases were initially appointed on ad hoc basis and subsequently they were regularized by an internal Committee of Judges of the High Court. Therefore, their selection was not in accordance with the procedure under which the appointment of Civil Judges is based on the result of competitive examination conducted by the Public Service Commission and a Judge of the High Court is associated as nominee of the Chief Justice in viva voce test. However, the recommendation of the Judge as Member of Commission in viva voce test is binding on the Commission and merit is accordingly assigned to the selectees on the basis of combined result of written examination and viva voce test. The appointing authority may appoint Civil Judges through the process of selection by the Committee of Judges constituted by the Chief Justice pending nomination of the candidate by the Commission as envisaged under rule 5(3) of the said Rules and if such appointments are subsequently regularized without the intervention of Public Service Commission, it is not a selection in terms of rule 5 of the Rules in question and consequently, the seniority of such appointees inter se will not be governed by rule 9 ibid. The selection by any other body other than the Public Service Commission, even through the process of test and interview, is not a selection by the Commission and therefore, the seniority of such selectees on appointment in absence of any specific rule, would be governed by the formula of age.
7. The contestants in the present case were interviewed together by the Committee of Judges and their appointments were also made on the same date, except that they were recommended by the Selection Committee for appointment on different dates but since they were not the recruitees of Public Service Commission, therefore, the order of merit assigned to them by the Selection Committee of Judges of the High Court, would not be considered a criteria for determination of their seniority in absence of any specific rule in the Balochistan Civil Judges Rules, 1984 or any other statutory rule. The learned counsel for the respondent No,2 and learned Advocate-General, Balochistan, have informed us that except the Balochistan Civil judges Service Rules, 1984 there was no other rule in the field on the subject. The result is that in the matter of seniority of incumbents inter se in the present case, rule 9 ibid would not be applicable and in absence of any specific statutory rule, they would be governed by the formula of age.
8. For the foregoing reasons, we set aside the impugned judgment and allow this appeal with no order as to costs.