1977 PLP [C (PLC(CS))

(iv) That the provisions of rule 22 of the P. M. L. and C. Service Rules and rule 8 (4) of the Pakistan P. M. L. and C. Service (Class I) Probation, Training and Seniority Rules, 1956, have been violated. It has therefore been prayed that the impugned order contained in Memorandum No. 101 /12/G/AD (B)/71 dated 18‑11‑72, in so far as it disturbs the seniority of the petitioner, be declared illegal, inoperative, void, mala fide and it may further be declared that the petitioner is senior to respondents Nos. 3 to 6 in PML & C Service (Class 1). The petitioner further prays that any promotion or consideration of such promotion of respondents Nos. 3 to 6 prior to the promotion of the petitioner should be declared illegal etc. On behalf of the respondents Nos. 1‑4, it is argued: (i) That the appeal is hit by proviso (b) to section 4(1) of the Service Tribunal Act, 1973, as no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. (ii) that the Pakistan Military Lands and Cantonment Service Class I and PML & C Service Class II was amalgamated and constituted into one service PML & C Service Class I vide Letter No. 81/4/G/D‑5/48 dated 2‑11‑55. . (iii) That the up gradation of the cadre did not imply that the existing member of that cadre attained the status of Class I and that if the promotion was to take place in the manner in which the appellant intends, he would have been promoted to Class I, on the same day when the orders of up gradation issued. (iv) That the case of promotion of the appellant (alongwith respondents Nos. 7 & 8) was referred to Government and FPSC and that they were considered unfit for promotion to Class I and had to wait until 21‑4‑59 when the P. S. C. approved the promotion which is indicative of the fact that the petitioner was in Class II whereas respondents Nos. 3‑5 had already joined Class I cadre in 1956 and No. 6 who joined on 13‑4‑58. (v) That the Government did not approbate and reprobate, but merely corrected an obvious order in the matter of fixation of seniority and that there is no question of estoppel in rectifying any mistake or error. (vi) There is no violation of any Rule or Rules. Respondent No. 4 further argued that he did not grudge the concessions allowed to the appellant, but they should not infringe or disturb his rights. We have heard the arguments in detail, in our view the decision in this case would rest on the correct interpretation of the Ministry of Defence Office Memorandum No. 81/4/G/D‑5/49 dated 2‑11‑55, sanctioning the classification and prescribing the scales of pay in respect of the Pakistan Military Lands and Cantonment Service as indicated therein, and Ministry of Defence Office Memorandum No. 108/R/D‑5/55 dated 13‑12‑1960 Gazette Notification No. 71/61 relating to promotion of the petitioner and others mentioned therein. It is significant to note that the words 'up gradation' or 'reclassification' have not been used in Defence Ministry's Office Memo randum dated 2‑11‑1955. The word 'up gradation's used in relation to a post or incumbent thereof and 'reclassification' in relation to an existing 'service'. Reclassification would have implied retrospective effect'. Neither of the two expressions have been used in the memorandum dated 2‑11‑

55. In the present case, para 3 of the aforesaid Office Memorandum indicates that the classification of the service and its incumbents for the period prior to the date of issue of the orders would be determined in accordance with the orders previously applicable. No retrospective effect to classification or application of the orders was intended to be given thereby implying that the order in regard to the "Officer of the PML & C Service" would apply from the date of issue of the aforesaid orders. There is no indication in these orders that the cases of the 'existing incumbents, in various tiers or any tier of the (defunct) (Service), would be decided separately for absorption in the new service. The now Service comprises: (a) Administrative appointments. (b) D. M. L. & C. (if) D. D. M. L. & C. (b) Class I (Senior Scale). (ii) D.D.M.L.&C. (ii) All M. E, Os.

2. All C. E. Os. of cantonments of Peshawar Newshara, Rawalpindi and Lahore. (c) Class I (Junior Scale). Executive Officers of Cantonments other than those mentioned in (b) (lf) above. That being the position, it would have to be assumed, that on the cons titution of the new service, every existing members of the (defunct) service, Ipso facto, became a member of the new service in the corresponding cadre. Although, technically, the status of the incumbents was raised and higher emoluments were allowed, no formalities in regard to 'promotion' were to be observed or provided for. Up gradation and Classification were in the nature of conversion of the existing service into a new one as provided for in the Defence Ministry's Office Memorandum dated 2‑11‑

55. Thus there was need to refer the case to the FPSC treating it as a promotion case. In fact there was no rule in regard to promotion from Class I to Class I (Junior Scale), on the basis of which the case could be considered. Further, as is clear, from the facts of the case, the petitioner was still on probation and had not completed even the period of two years in the defence service. In case the intention was to treat the case as one of promotion in the ordinary course, then a similar procedure and formalities laid down in the Rules, had to be followed in regard to other categories or tiers of the service viz the senior scale and the administrative appointments. It is not the case of respondent No. I that a similar procedure was adopt in respect of all the tiers of service. It is not therefore understood, as to why a different procedure was adopted in respect of one tier of service. This particular tier being the lowest in the now service by converting Class II tier, which having ceased to exist there was technically no question of formal promotion. Respondent No. 1, having treated the case as one of 'promotion and having promoted the petitioner to the junior scale with effect from 2‑11‑1955, and having confirmed him from the same date, inducted him into the now service (Class I Junior) from the date of constitution. Defence Ministry's O. M. No. 108/R/D‑5/55 dated 12‑13‑60 refer. Neither of the two orders has been cancelled and the vested right, including seniority created thereby holds the field. The two orders are not in the nature of concessions. Persons, who were not in service on 2‑11‑1955, on which date the peti tioner held the post in the new service in a substantive capacity, cannot be declared senior to the appellant. Accordingly, we hold that the appellant continues to be senior to respondents Nos. '‑6 in the junior scale and the No. IOl/12f`G/AD/71, dated 18‑11‑1972, disturbing the seniority of the appellant is hereby vacated. As regards the other prayer, that any promotion of respondents Nos. 3‑6 prior to the promotion of the petitioner should be declared illegal, we consider that the petitioner has no cause of action presently. Order accordingly.