M. SALIEM CHAUDHARY (CHAIRMAN): This judgment disposes of the following two cases which involve common questions of law and facts :-
(1) Case No. 226/748 of 1975- Aziz Ahmad Rathore v. Secy., Industries etc. (Appellant No. 1)
(2) Case No. 227/747 of 1975 Muhammad Latif v. Secy--- Industries etc. (Appellant No. 2)
In these cases the appellants assail the notification of 15-5-1975 whereby the respondents Nos. 2 to 7 along with one others were placed senior to the appellants in the seniority list of Class II Officers of the Industries Department.
2. It may be stated at the outset that the appellants did not press their claim against respondents Nos. 4, 5 and 6 and their names were accordingly struck off from the list of respondents.
3. The facts of the cases which are common between the parties are that the appellants were direct appointees through the Public Service Commission to Class II service with effect from 11-3- 1959 and 8-7-1960 for appellants Nos. I and 2, respectively. It is also not disputed that all the respondents are promotees to Class II service from various dates. A 'final' seniority, list of Class II Officers was notified on 18-I 1-1971 in which the appellants Nos. I to 2 were shown at Serial Nos. 1.1 and 14 respectively while the six respondents were in the junior positions at Serials Nos. 21 to 26. It appears that the publication of this seniority list generated a large number of appeals before the Civil Services Appellate Tribunal and the present respondents 2, 3 and 7 were among such appellants who through their respective Appeals Nos. 131/38, 49/61 and 127/34 claimed seniority over a number of incumbents including the present appellants Nos. 1 and 2.
4. In all the above three cases (decided on 30-6-72, 24-7-72 and 28-6-72 respectively) the claim of seniority over the present appellants was not accepted by the Tribunal so that these two appellants were admitted as senior to the three present respondents Nos. 2, 3 and 7. It appears that before full effect of the aforesaid three judgments of the Appellate Tribunal could be given, another judgment in Case No. 43/81. Involving, inter alia, the same parties appeared on the scene on 24-8-1972. In this case B. H. Bokhari had challenged the seniority of 17 offers which included not only the present appellants but also the present respondents 2, 3, 5,
7. The outcome of this judgment was that both the present appellants (along with 6 others) were declared junior to Mr. Bokhari while present respondents Nos. 2, 3 and 5 (along with 4 others) were declared senior to him. This judgment reversed the position of seniority of the present appellants qua the three respondents 2, 3 and 7 as determined in the earlier three judgments. Since the last judgment was not found reconcilable by the departmental authorities with the earlier three judgments, it appears it was thought fit to implement the judgment in the case of Mr. Bokhari, which happened to be the latest in point of time. Resultantly the impugned notification of 18-11-1971 was issued whereby respondents 2 to 7 were placed in the seniority list between Serials Nos. 10 and 11 in positions senior to the appellants Nos. 1 to 2, who were occupying the position at Serial Nos. 11 and 14 respectively.
The view taken by the Civil Services Appellate Tribunal in the earlier three cases of 1972 (131/38, 49/61 and 127/34) was that the present appellants Nos. 1 and 2 (who were respondents in these cases) were direct recruits to the service with effect from 11-3 1959 and 8-7-1960 respectively, while respondents Nos. 2, 3, 5 and 7 were promoted to the service with effect from 17-6-1957, 17-6-1957, 17-6-1957, and 19-10-1957 respectively. Since the dates of appoint--ment of the present respondents- fell between the date of integration (14-10-1955) and the date of promulgation of the West Pakistan Industries Service (Class II) Rules 1962 (13-10-1962), it was held that their seniority was governed by the Integration circular No. 871-Integration 55/4-71 of 21-I1-1955 under para. 17 (c) thereof According to the said para the seniority of direct recruits vis-a-vis promoted officers is to be regulated with reference to the date of appointment or otherwise for the former, and the date of substantive appointment for the latter. The dates of promotion of the respondents 2, 3, 5 and 7 as mentioned above were earlier than the dates of appointments of the appellants but since none of the respondents was confirmed in his post, all of them were held junior to the appellants in view of provisions of the aforesaid para 17 (c) of the integration circular. In Case No. 49/61 of 1972, the contention that appellant seniority should be regulated by the 1962. Service Rules of Class lI on the ground that it was stipulated in the advertisement for the post (in response to which the appellants applied for the post) that the selectees will be governed by the relevant services rules when promulgated, was not accepted by the Tribunal and was rebutted as under:- "It is, however, contended on behalf of the appellant that as in the advertisement by the Public Service Commission that those appointed will be subject to the ''Vest Pakistan Industries and Mines Service (Clause 11) Rules, to be framed by the Government, respondent 7 is governed by these rules.
This information to the prospective candidates for selection to the post of Industrial Development Officer indicated in broad terms that they would be governed by the Class II Rules, which were being drawn up, but the effect of this intimation was not to override the force of para. 17 (c) of Integration Circular which had the force of rules prior to the promulgation of the Class II Rules. The information did not specifically say that in matter of seniority, they will be governed by Class II Rules, so that the inter se seniority, of the two has to be determined under rule 9 of the Class II Rules. This respondent, not having been indicated beforehand the nature of the rule governing seniority, cannot be said to have necessary action, so as to change effectively his right of seniority under para. 17 (e) of the Integration Circular. Thus their inter se seniority will be determined under para 17 (c) of the Integration Circular, and not under rule 9 for purposes of determination of their seniority in Class II. "
In the Case No. 43/81 Mr. Bokhari had challenged the seniority in Class II as well as in Class I (Junior) of 17 Officers which included inter alia the two appellants and respondents Nos. 2, 3, 5 and 7 of the cases before us. Mr. Bokhari was originally an employee of the Federal Government where he was appointed as temporary Assistant Director of Inspection in Class II with effect from 17-9-1957 through the Federal Public Service Commission. Due to reorganization, the Department of Investment Promotion and Supplies of the Central Government was transferred to the Provincial Govern--ment which brought Mr. Bokhari to the Industries Department of West Pakistan with effect from 1-4-1966. In this case the Civil Service Appellate Tribunal applied the criteria of seniority as laid down by the Service and General Administration Department in their letter dated 5-4-1963 wherein sub-para. (iii) at para. 3 provides that the inter se seniority of the officers transferred from the Central Government vis-a-vis those in the Provincial Government Service shall be determined with reference to their respective dates of continuous appointment to the grade. Since in this formula the date of confirmation was not relevant, the respondents 2, 3 and 5 derived the benefit of their earlier dates of continuous appointment. Resultantly the appellants along with six others were declared junior to Mr. Bokhari, while respondents 2, 3 and 5 were declared senior to them. The Tribunal has not determined seniority of respondent No. 7 qua Mr. Bokhari on the ground that respondent No. 7 was promoted to Class I (Junior) before Mr. Bokhari came on transfer to Class II Service of the Province, so that the two were never concurrently on the seniority list of Class II Service. This arrangement has produced the results contrary to the decision of earlier three cases namely No. 131/38, 49/61 and 127/34 inasmuch as the appellants who were earlier declared senior to the respondents are now placed junior to some of the respondents. Faced with this contradiction the Department have ignored the earlier three decisions of the Civil Services Appellate Tribunal and have implemented the decision in the case of Mr. Bokhari, being the latest in point of time. This has generated grievance and the consequent appeals before us.
5. We may state here at the outset that we have ruled in Case No. 84a of 1974 that the erstwhile Civil Services Appellate Tribunal is not a departmental authority within the meaning of section 4 of the Punjab Service Tribunals Act, 1974 so that no appeal lies to this Tribunal from the order of that Tribunal. We are, therefore, unable to entertain these cases as appeal from the orders of the Civil Services Appellate Tribunal and are precluded from passing any order upsetting the decision of the said Tribunal.
6. It will be observed in the instant case that this imbroglio has been caused due to failure of the Department to give substantive dates of promotion to the promotee officers for long periods without any apparent justification. The Department has failed to convert temporary posts which have been recurrently sanctioned from year to year over long period into permanent ones. Since para. 17 (c) of the Integration Circular dated 25-I1-1955 does not give any credit for seniority to officiating promotion, the promotees of howsoever earlier dates of officiating promotion were relegated in positions of seniority below the direct recruits of much later dates. The Civil Services Appellate Tribunal was not oblivious to this administrative anamoly and had even directed the Department in the case of Islam Hassan Khan (Appeal No. 50/62 of 1972) as under:- "It is unfortunate that promotions in the Department have been made in accordance with their seniority in Class II, which results in a great deal of heart-burning and discontentment amongst officers. We have pointed out in other cases that paragraph 17 (c) of the Integration Circular causes hardship and inequity in service in Department like Agri. And Industries Departments where posts are sanctioned from year to year, and remained temporary even though they have existed for many years. It was evidently to remove this hardship that the S & GAD in their Letter No. SOXII (S & GAD 22-195/64, dated 19th December, 1964. Printed at page 655 in the Establishment Manual, Volume III, directed that annual review should henceforth be made of all temporary posts, which have been in existence for a period from 3 to 5 years for converting them into permanent posts. If this is done, the hardship caused to a promotee can be with retrospective effect from a post, converted into a substantive post. We, therefore, recommend in terms of the S & GAD letter that the question of converting temporary posts in the Industries Department into permanent posts be examined since they have been in existence for more than three to five years and retrospective confirmation made against these posts so that the inequity that person appointed earlier does not remain junior to a person who is appointed directly later."
It is quite apparent from the judgment of the Tribunal in the case of Mr. Bokhari and others that these anomalies in Class II seniority created further anomalies on the further promotion of these incumbents to Class I Junior, in which case it appears that the promotees with earlier dates of promotion than the direct recruits (but who were junior in terms of seniority to the latter) were promoted earlier than the direct recruits. The Tribunal was also quite conscious of this situation and had qualified their judgment in the case of Mr. Bokhari for the part of their order relating to seniority in Class I Junior, by the following observation envisaging possible changes in date of promotion in future:- " ........And direct that they shall be junior to the appellant in the seniority list, subject to any orders which may be made to change the dates of promotion."
It also appears that reference was made to the Tribunal by Secretary Industries for the resolution of such anomalies in reply to which the Registrar of the Tribunal vide his Letter No. CS (A) T-73/3315 dated 2-8-1975 reiterated the same views of the Tribunal. In this letter which is on record, it is advised in the last para as under:- "It may be pointed out that it is for the Department to determine what is the number of substantive vacancies available for direct recruits and promotes and in case substantive vacancies were available force promotees, they should be confirmed against substantive vacancies, which will then determine their seniority qua the direct recruits. How--ever, this is an exercise which has to be carried out by the competent authority and the issue should be resolved in accordance with the facts of each case and the rule of seniority at the relevant time."
Thus in our view the key to the clearance of various anomalies which the Department is now faced with, lies in complying with the above directions of the Civil Services Appellate Tribunal in the case of Islam Hassan Khan reproduced in para. 6 and reiterated subsequently in the letter of the Registrar dated 2-8-1973.
7. Operating within the limitation of law imposed upon this Tribunal, we direct the Department that they should comply with the earlier direction of the Tribunal in case of Islam Hassan Khan and then determine the seniority of the incumbents first in Class II and then, if necessary, readjust their dates of promotion in Class I Junior. The appeals are disposed of with the above observation with no orders as to costs.