1984 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).‑

Messrs Faiz Muhammad and Ch. Bashir Ahmad, have filed thess appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which both the appellants have impleaded the Member (Revenue), Board of Revenue, Punjab, Lahore, Ahmad Din, Junior Revenue Accountant, Board of Revenue, Punjab, Lahore and the Province of Punjab through Member (Revenue), Board of Revenue Punjab, Lahore, as respondents.

2. By virtue of these appeals, they have prayed that the impugned orders, dated 4th October, 1982 and 29th May, 1983, passed by the Res pondent Department be set aside and seniority of both the appellants be restored with all benefits available to them.

3. As the point of law involved is identical in both these appeals we will dispose of these two appeals with our this single judgment.

4. Brief facts of the case are that in the year 1932, a Special Agency was created for the purpose of Audit and Inspection of Land Revenue and Taccavi accounts maintained at Teshil/District Level. The agency was subordinated to the Financial Commissioner/Board of Revenue and remained temporary till 1966‑67 when on 1st July, 1967 the following posts were made substantive :‑ (1) Tehsildars on Special duty 2 (2) Senior Revenue Accountants 5 (3) Junior Revenue Accountants 2 (4) Junior Clerk/Typist 1 (5) Peons 2 For the initial appointment of the Junior Revepue Accountant the basic qualification was considered to be a qualified Patwari, Kanungo and Wasil Baki Nawees and for the post of Senior Revenue Accountant the posts were to be filled in by promotion from Junior Revenue Accountants. In the year 1969‑70 two posts of Senior Revenue Accountants were upgra ded and were designated as Revenue Auditors, and thereafter the strength of the Audit Wing became as under: --‑ (1) Tehsildars on Special duty 2 (2) Revenue Auditor 2 (3) Senior Revenue Accountants 3 (4) Junior Revenue Accountants 2 (5) Junior Clerk/Typist 1 (6) Peons 2 The grades admissible to .the Tehsildar On Special Duty is NPS‑16, two Revenue Auditors, NPS‑I1, 3 Senior Revenue Accountant NPS‑7 and 2 Junior Revenue Accountant NPS‑5 and obe Junior Clerk/Typist in NPS‑

5. The appellant Faiz Muhammad joined Government Service on 24th December, 1949, as a qualified Matriculate Patwari in the Central Record Office, Financial Commissioner's Office, board of Revenue. He was promoted as Kanungo on 18th November, 1958, and continued to work as such till 21st November, 1963. On 22nd November, 1963, he was posted as Junior 'Revenue Accountant having the basic qualification of being a qualified Patwari and Matriculate Kapungo. Bashir Ahmad appellant, was appointed as Matriculate Patwari on 20th June, 1961 in the Central Record Office, Board of Revenue, West Pakistan, Lahore. Subsequently the appellant qualified his Intermediate Examination from the Board of Intermediate and Secondary Education, Lahore. On 1st February, 1965, the appellant was appointed as Junior Revenue Accoun. tant vide Office Order No. 387‑65‑B&AI, dated 1st February, 1965, in the cadre of Revenue Accountants in the Board Of Revenue, Punjab. Due to the abolition of one post of Junior Revenue Accountant the appellant was relieved from his duty on 31st May, 1965, being junior most Junior Revenue Accountant. Again vide Office Order No, 3707/68/2196‑B&AI, dated 17th August, 1968, the appellant was appointed as Junior Revenue Accountant. The break in service was also condoned vide Order No. 3707/68/2951‑B&AI, dated 27th November, 1968. The appellant was confirmed as Junior Revenue Accountant vide Order No.749/71/314-B&A1, dated 7th February, 1970. Thereafter he was promoted as Senior Revenue Accountant from 21st December, 1971 vide Office Order No. 4771/741890‑B&AI, dated 21st June, 1974. Ahmad Din respondent was appointed as Junior Clerk/Typist on 18th June, 1958 in the Audit Wing of the Board of Revenue. He continued to work as a Junior Clerk/ Typist but as there was no chance of further promotion for him, as he did not hold any technical qualification of accounts or revenue, he was granted Rs. 25 P. M. as special pay from 1st July, 1967. With all these facts on the record, respondent No. 2 was placed senior to the appellant in the seniority list to be prepared in the year 1982. An office order was issued on 29th August, 1982, by the Secretary (Settlement), Board of Revenue, to invite objections on the aforesaid seniority list in which respondent No. 2 was placed above the appellants. The appellants made representations in this regard, but the said list was maintained as such vide order, dated 4th October, 1982, The appellants again filed a repre sentation before the Member, Board of Revenue, but no decision has yet been conveyed to the appellant. Meanwhile the respondent No. 2 has been promoted as Revenue Auditor by super-session of the appellant vide Office Order No. 2907‑83/675‑B&A (RAG), dated 29th May, 1983, w. e. f. 21st December, 1971. Hence these appeals.

5. We have heard the learned counsel for the appellants as well as learned counsel for the respondent No. 2 as well as learned District Attorney and have perused the record of this case carefully with their assistance.

6. Learned counsel for the appellants has submitted that the respon dent No. 2 did not possess the basic qualification of being Patwari, which qualification was essential for the cadre of Revenue Accountant as the person would only be eligible for the said post, if he was conversant with the work of Patwari, Kanungo or Wasil Baki Nawees. In this manner the learned counsel for the appellant has challenged the eligibility of this respondent for his appointment as Junior Revenue Accountant. It was further argued that even if it is accepted while not conceded that he was absorbed after he was declared surplus in 1971, his service out of the cadre could not be counted to determine his seniority in the order of Revenue Accountants. 1t was further pointed out that the respondent has not yet been confirmed in NPS‑5 whereas the appellant Bashir Ahmad was confirmed as Junior Revenue Accountant on 7th February, 1970 and was working as senior Revenue Accountant from 21st December, 1971. It was further argued that the appellant Faiz Muhammad was confirmed as Senior Revenue Accountant in NPS‑7 as far back as on 1st July, 1967 and ranked much senior to respondent No. 2 who is still working in NPS‑

5. It was further pointed out that the appellant Faiz Muhammad was working as Revenue Auditor in NPS‑11 since December, 1971. It was further pointed out that respondent No. 2 having not worked as Junior Revenue Accountant/Senior Revenue Accountant, is not eligible to be pro moted as Revenue Auditor.

7. On the other hand learned District Attorney has adopted the comments filed by the Additional Revenue Commissioner, Board of Revenue, Punjab and has submitted that the seniority of Ahmad Din respondent No. 2, was fixed after he represented before his superiors and he may be given seniority from the original date of his appointment and made senior to the appellants taking into account the service rendered by him as a Typist/Junior Clerk, w. e. f. 18th June, 1958. According to the learned District Attorney as the respondent has been declared senior therefore, his promotion as Revenue Auditor was made by reverting the appellant. It has been further submitted by the Learned District Attorney that in the Board of Revenue seniority was the basic qualification for promotion and the previous service of the person could be counted towards pension and not towards seniority. However, the Additional Commissioner Revenue, Board of Revenue, has stated that no rules for these functionaries bad been framed and the practice in vogue was that the appointment to the post of Junior Revenue Account ant was to be made from Patwaris and to the cadre of Senior Revenue Accountant from Junior Revenue Accountant. It was also admitted by the Additional Revenue Commissioner in para. 12 (d) and submitted that the respondent No. 2 never worked as Junior Revenue Accountant and Senior Revenue Accountant and as there was no post of Typist he kept on working as a Typist although he draw pay against the post of Junior Revenue Accountant. However, he had defended the eligibility of the respondent by submitting that in the Board of Revenue, seniority was the basic qualification for promotion and as the respondent No. 2 was senior by virtue of his service so rendered by him, he was given seniority as such.

8. We have given our anxious thought to the arguments so advanced by the parties and find, as per admission of the respondent through Additional Revenue Commissioner, Board of Revenue Punjab, that the respondent never worked as Junior Revenue Accountant and Senior Revenue Accountant practically as well as by conceding that the prac tice in the Board of Revenue was that the appointment to the post of Junior Revenue Accountant was to be made from Patwaris and all the officials who were or are still working in the said cadre, were basically Patwaris. In view of this candid admission on the part of the respondent Department, we find lot of force in the plea of the appellants that they were appointed to the post of Junior Revenue Accountant while possessing the basic qualification of being a Matriculate Patwari and worked as Patwari and Kanungo in the Central Record Office from 1949 to 1962. We also find no justification for the respondent to exclude the services of the appellants which they rendered in the Central Record Office from 1949 to 1962 in case of Faiz Muhammad and in case of Ch. Bashir Ahmad from 1961 onward in the Central Record Office of the Board of Revenue, which is a part of the Board of Revenue itself. We further find that respondent No. 2 has not yet been confirmed as Junior Accountant whereas Faiz Muhammad was confirmed as Senior Revenue Accountant from 1st July, 1967 and definitely would rank senior to the respondent No.

2. Even now the appellant is working as Revenue Auditor in NPS‑11 since December, 1971, whereas the respondent No. 2 did not render any service in the said cadre and he would be in eligible to be promoted as Revenue Auditor as he lacked the basic qualifi cation in this respect.

9. Similarly while looking into the particulars of Ch. Bashir Ahmad appellant, we find that he was appointed Maticulate Patwari on 20th June, 1961 in the Central Record Office, Board of Revenue, West Pakistan and due to the abolition of the post of Revenue Accountant he was relieved on 31st May, 1965, being junior most, but he was again appointed against the said post and break in service was duly condoned The appellant was Junior Revenue Accountant since then and was, however, promoted as Senior Revenue Accountant from 21st December, 1971. Keeping in juxtaposition the service particulars of both the appellants and the respondent, we have no hesitation to hold that Ahmad Din respondent No. 2, did not belong to the cadre of this class as be lacked the basic qualification, which would make a person eligible to work against such posts which require technical knowledge of Patwari, Kanungo and Wasil Baqi Nawees. The Respondent No. 2 was just a Typist and when he was declared surplus he was, without any justification and support of any valid provision of seniority, picked up and brought in the cadre of Accountants without taking into consideration his service record vis‑a‑vis the record of these two appellants. It would be a great act of injustice if the respondent is allowed to remain senior as well as to enjoy his promotion as Revenue Auditor when he is still unconfirmed in NPS‑5, whereas the appellant Faiz Muhammad is working in NPS‑I1 since December, 1971, and Ch. Bashir Ahmad who is not only intermediate but is working in this specialised branch since 1965 and has been confirmed as Junior Revenue Accountant since 1970 and promoted to the rank of Senior Accountant on 21st December, 1972.

10. It is a well‑established principle of fairplay, justice and equity that game should be played according to rules and not at the whim and fancy of those who act as a Referee in the matter, when the prevalent rules of the game required that the person coming to this cadre should first be basically a matriculate Patwari and should belong to the Special Agency created for the purpose of audit and inspection of the Land Revenue and f Taccavi accounts against the substantive posts so created in this behalf, then it would also be essential to mak‑ promotion to the post of Senior Revenue Accountant only from the persons who were holding the post of Junior Revenue Accountant, a post which was later on upgraded and designated as Revenue Auditor. The respondent No. 2 according to the admission of the Government made in the comments by the Department has never worked either as Junior Revenue Accountant or Senior Revenue Accountant and has been straightaway foisted on the post of Revenue Auditor, a post for which he was never eligible either by virtue of his qualification or by dint of experience in the said branch.

11. In view of the above, we proceed to accept the appeals, set aside the impugned orders and hold that the appellants would be senior to the respondent No. 2 by all measures as analysed above and their reversion cannot be made by promoting the contesting respondent No. 2 to the post E of Revenue Auditor who belonged to a different category. It is further directed that they may be restored their original post from which they have been so reverted. However, there will be no order as to costs. A. E. Appeal accepted.