P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This order will dispose of Writ Petitions Nos. 348 and 379 of 1960. In these writ petitions both the petitioners have prayed for the fixation of their seniority in the selection post of North‑Western Railway Assistant Claims Inspector, and the questions of law involved in them are common. These writ petitions have arisen under the following circumstances. Zainul Abidin Mehdi, the Petitioner In Writ Petition No. 348/1960, and Murtaza Sayed Asadullah, the petitioner in Writ Petition No. 379 of 1960, originally belonged to the Bengal -Nagpur Railway. The former, at the time of Partition, was holding the post of office clerk in the scale of Rs. 40‑85, and the latter was holding the post of Shed Clerk (Goods) in the grade of Rs.30‑4‑.‑

50. Both of them opted for Pakistan. Zainul Abidin Mehdi, on transfer, was posted in the East Bengal Railway, Dacca, in the capacity of office clerk In Watch and Ward Section under the District Traffic Superintendent, Dacca. Murtaza Sayed Asadullah, the petitioner in the other writ petition, after partition, was posted as goods clerk in the East Bengal Railway at Parbatipur. Both the petitioners, being eligible for promotion and selection, appeared before an approved Selection Board held on the 12th of March 1948 for selection to the post of Commercial Inspector, Claims, Grade III, in the grade of Rs. 100‑10/2‑

120. They were declared selected and were placed in order of merit at Nos. 17 and 14 respectively. As a result of their selection, Zalnul Abidin Mehdi was promoted to the post of Commercial Inspector, Claims, Grade 111, on the 22nd of November 1948 and continued to work in that capacity till the 16th of February 1949. Due to curtailment of the two posts of Commercial Inspectors out of the initial sanctioned strength, he was reverted temporarily and on the 16th of June 1950 was again promoted to this post and continued to hold It till he was transferred to the N.‑W. R. in October 1958. On transfer he was posted at Rawalpindi on the 22nd of October 1958 as Assistant Claims Inspector, but on the 2nd of November 1959 was reverted to the post of Clerk, Grade 1, in the scale of Rs.60‑120 on the ground that on the seniority list he was junior to Opponents Nos. 1 to

23. This petitioner has challenged in this writ petition the seniority list prepared by Opponents Nos. 24 and 25 and has contended that the seniority list was not prepared In accordance with the rules applicable to him. Petitioner Murtaza Sayed Asadullah also after his selection to the post of Assistant Commercial Inspector (Claims) in the grade of Rs. 100‑10/2‑120, was promoted to officiate in a permanent vacancy of Assistant Commercial Inspector (Claims) on a salary of Rs. 100 per month, which was later on upgraded to the grade of Rs. 125‑10‑

225. This petitioner without any break and continuously continued to hold the post of Assistant Commercial Inspector (Claims) in the East Bengal Railway till his transfer to the N: W. R. In the year 1958. He also joined the N.‑W. R. as Assistant Claims Inspector on 22nd October 1958 and was posted at Bahawalnagar. After his transfer to the N.‑W. R., by an order dated the 29th of September 1959, he was also reverted to the post of Booking Clerk, Grade 1, In the scale of Rs. 60‑4‑120 on the ground that being the junior most person in the Selection post of Assistant Commercial Inspector (Claims) in the seniority list he was liable to be reverted. This Petitioner has also challenged the seniority list prepared by Opponents Nos. 24 and 25 on the ground that his seniority has not been fixed according to the rules applicable to him. Opponents Nos. 1 to 23 were also selected by their parent railway namely N.‑W. Railway to the selection post of Assistant Commercial Inspector, Claims, Grade III, by the Selection Board in the year 1950 but they have been placed In the seniority list in order of merit higher to the two petitioners. These persons were impleaded as parties to the two writ petitions because they were likely to be affected by any order passed by this Court, but they have not appeared and contested the two petitions. In defence, Opponents Nos. 24 and 25, who are the General Manager, N.‑W. R., Lahore and the Divisional Superintendent, N.‑W. R., Karachi, respectively, have opposed the writ petitions and maintained that the seniority of the petitioners was fixed according to the rules applicable to them. The short question, therefore, for consideration in these writ petitions is whether the seniority of the petitioners has been fixed according to the rules applicable to them. Before dealing, with the question on merits, it will be proper to mention at this stage that the two petitioners were holding the post of Assistant Claims Inspectors in an officiating capacity on their reversion to their substantive posts in the year 1959. At that time no seniority list pertaining to the petitioners and Opponents Nos. 1 to 23 was prepared. It was prepared on the 14th of April 1960 vide Annexure Rill filed with the report of Opponents Nos. 24 and 25 dated the 6th of December 1960. The positions of petitioners Z. A. Mehdi and M. S. Asadullah on this list are at No. 26 and No. 27, i.e., at the bottom of the seniority list in question. It is not disputed by the petitioners that they were holding the post of the Assistant Claims Inspector in the N.‑W. R. In an officiating capacity and are liable to be reverted in case they are found unfit for that job. But they claim that they were selected to an equivalent selection post of Commercial Inspector Claims, Grade III as far back as the year 1948 in East Bengal Railway and being senior most personnel, could not be reverted to their substantive posts unless they were found to be unfit for the posts in question. It is contended on behalf of the petitioners that their seniority should have been fixed according to the N.‑W. R. Rules contained in Appendix XIII at page 171 of Advance Chapter No. 1 of Personnel Manual General and they should have been shown senior to Opponents Nos. 1 to 22 on the seniority list. On the other hand the case of the contesting opponents is that the seniority of the petitioners vis‑a‑vis Opponents Nos. 1 to 23 was rightly fixed in the light of the decision of the General Manager dated the 12th of March 1954 and 15th April 1960 contained in Annexure RI and RII respectively filed with their reports. The question, therefore, is whether the rules contained in Appendix XIII of the Advance Chapter No. 1 of Personnel Manual General of the North‑Western Railway are applicable to the petitioners or the decision contained in the documents RI and RII filed by the Opponents is applicable to them. Mr. Chisti, the learned counsel for the petitioners has strongly urged before us that the rules contained in Appendix XIII of Advance Chapter No. 1 of Personnel Manual are applicable to the petitioners' case because they are the rules framed under Rule 157 of the Pakistan Railway Establishment Code, Volume I. Under this rule, the General Managers of Pakistan Railways have been given full powers to make rules with regard to the non-gazetted railway servants under their control provided they are not inconsistent with the rules made by the Governor‑General or the Railway Division. The learned counsel further contended that the rules dealing with the seniority of the staff of the N.‑W. R. are In Chapter VI at page 52 of Advance Chapter No. 1 of Personnel Manual. The learned counsel referred us to Rule 3 (a), which is in the following terms: "Rules regarding the preparation of combined seniority lists of staff coming from different Indian Railways vis‑a‑vis North‑Western Railway Staff are contained in Appendix XIII." It is urged by the learned counsel that in view of this rule in Chapter VI the rules contained in Appendix XIII are applicable to the Petitioners. In the Appendix itself Cl. II is the relevant rule which is sought to be applied to the case of the petitioners. It is in the following terms: "The seniority of employees in selection posts should be determined on the basis of the date of appointment, to such post, irrespective of the fact whether an employee is a sub stantive holder of the selection post or otherwise. The relative position on the selected list of employees of each railway will, however, in no case be altered." It is thus quite clear that if this rule is applicable to the case of the petitioners, the seniority list of employees In selection posts is to be prepared on the basis of the date of their appointment to such post irrespective of the fact whether an employees is a substantive holder of the selection post or not. The only condition is that in fixing such seniority the relative position on the selected list of employees of each railway will not be altered. Mr. Mirza Mukhtar Ahmad, the learned counsel for the contesting opponents, has urged before us that these rules are not applicable to the cases of the petitioners because they are not the members of the staff of ex‑Indian Railways vis‑a‑vis North Western Railway. The contention of the learned counsel appears to us to be not well‑founded. It is an admitted position that the petitioners belonged to the Bengal‑Nagpur Railway and before Partition were the members of the staff of ex‑Indian Railways. They opted for Pakistan and after Partition were posted to the East Bengal Railway. In 1958 the Government of Pakistan decided that the optees from Indian Railways In the East Bengal Railway should be asked to give a declaration about their domicile. The petitioners, in pursuance of this decision, showed their domicile as West Pakistan. It was decided by the competent authorities that persons in the employment of East Bengal Railway whose place of domicile is West Pakistan should be transferred to the N.‑W. R. It was, in these circumstances, that the petitioners were ultimately transferred in October 1958 to the North Western Railway. In our opinion, the fact that after Partition the petitioners were posted to the East Bengal Railway will not make any difference so far as their original position at the time of Partition Is concerned. At that time they were the members of the staff of ex‑Indian Railways and were regarded and treated as such even after Partition both In the E. B. R. and N. W. R. It is, therefore, quite clear to us that on this basis the petitioners case falls within the four corners of the rules referred to above. Mr. Mirza Mukhtar Ahmad has referred us to the two documents, RI and RII, produced with the report of Opponents Nos. 24 and 25, and has very strongly urged that the decisions contained in these two documents are applicable to the case of the petitioners. So far as the letter dated the 12th of March 1954, RI, is concerned, there is not the slightest doubt in our mind that it cannot be applied to the petitioners' case. The decision contained in this letter was in respect of about 700 staff (the list of which was handed over by the General Manager, E. B. Railway to the General Manager, N. W. R.) in the category of surplus and also non‑surplus who were either getting expatriation allowance or have expressed their desire to go to N.‑W. R. that they should be transferred to the N.‑W. R. without further delay. The contesting opponents have not produced the list of the staff mentioned in this letter and therefore it is not possible for us to hold that the decision contained in this document has any applicability to the case of the petitioners. As regards the decision contained in the letter of the General Manager dated the 15th April 1960 in the document RII, it is quite apparent to us that this decision was also in respect of those members of the staff who are referred in the letter dated the 12th of March 1954, Annexure RI. The following narrative in this letter will bear out this fact: "The proposals contained in your letter No.847‑E/103/35 (EIV) dated the 10th November 1958 have been considered very carefully by the Board, and they have decided as follows: The decision taken in the General Managers' conference vide subject No. 3 of the Minutes of the General Managers' meeting held on 16th to 18th June 1953, regarding transfer of surplus and non‑surplus staff from E. B. Railway to N.‑W. Railway should be modified as under." It is thus quite clear from it that the decision taken on the 16th to the 18th June 1953 regarding the transfer of surplus and non -surplus consisting of about 700 staff of E. B. Railway referred in the letter dated the 12th of March 1954, was intended to be modified by this letter. Besides, there are other weighty reasons which go to show that this decision cannot be applied to the petitioners' case. In the first place the contesting opponents have not produced any document on the record to establish that the petitioners' transfer from E. B. R. was subject to any future decision by the Railway Board or N.‑W. R. Authorities. In fairness, any decision taken In 1960 cannot be applied to the railway employees who were transferred from E. B. R. in the year 1958. In the next place, it is also doubtful that this decision is in the nature of rules framed under Rule 157 of the Pakistan Railway Establishment Code, Volum I. In Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105), their Lordships have clearly laid down that ordinarily the making and promulgation of a rule should be attended by certain formalities e.g., publication in a Government Gazette. Their Lordships further observed that it is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be, the status and validity of a statutory rule. It was admitted at the Bar that the decision contained in the above‑mentioned document was not attended by any formalities and was not even published in any gazette. In view of this, the decision in question cannot be treated as rules substituting those contained in Appendix IV of Advance Chapter No. 1 of Personnel Manual referred to above. In our opinion the decision taken in documents RI and RII are not applicable to the case of the petitioners because neither they have any relevancy to the Petitioners' case nor they acquired the status of the rules. At this stage, it may be mentioned that under the decision of the General Manager contained In letter dated the 15th April 1960 (RII) in clause (d) (1), it is provided that the seniority of employees who were selected for promotion to selection posts on N.‑W./E. B. Railway after partition in the event of transfer from E. B. Railway to N. W. Railway and vice versa shall be determined according to their substantive position as it stood on 14‑8‑1947. On this basis the seniority of the Petitioners vis‑a‑vis Opponents Nos. 1 to 22 was fixed. In the circumstances of the present case Opponents Nos. 24 and 25 were not justified in fixing the seniority of the petitioners with the other Incumbents of the selection post on that basis. Accordingly we hold that the seniority list prepared by Opponents Nos. 24 and 25 on the 14th of April 1960 is not binding on the petitioners and has no validity in the eye of law. On this view of the matter, the seniority list prepared by the contesting opponents is hereby quashed, We further issue a writ of mandamus to the General Manager, North‑Western Railway, and Divisional Superintendent, N.‑W. R., Karachi, to fix the seniority of the petitioners vis‑a‑vis Opponents Nos. 1 to 23 in accordance with the rules contained in Clause II of Appendix III in Advance Chapter No. 1 of Personnel Manual applicable to them. In the result, the petitions are allowed with costs. K. B. A. Petitions accepted,