1995SCMR1859 (PLP)

SALEEM AKHTAR, J.‑‑‑These two appeals and petition with the leave of the Court arise from the judgment of the N.‑W.F.P. Service Tribunal and will be disposed of by this judgment.

2. Prof. Dr. Sirajuddin and Prof. Dr. Muhammad Kabir have filed Appeal No.550 of 1994 and will be referred herein as the appellants. Prof. Dr. Shafiq Ahmad, Chief secretary, Government of N: W.F.P. Federation of Pakistan, Prof. Dr. Mrs. Mumtaz Farooq Khattak, Prof. Dr. Ashfaq Ahmad, Prof. Dr. Ahmad Khan and Prof. Dr. Badshah Gul have been cited as respondents in this appeal and will be referred hereinafter as respondents. Civil Appeal No.658 of 1994 has been filed by Prof. Dr. Badshah Gul while Civil Petition for Leave to Appeal No.235‑P of 1994 has been filed by the Government of N: W.F.P. In all these appeals and petition same judgment is under challenge.

3. In the year 1984 the Provincial Government established Post-?Graduate Medical Institute at Lady Reading Hospital, Peshawar by Notification dated 27‑8‑1984. Under a separate Notification dated 30th December, 1984 it was provided that there would be separate rules in respect of appointments and promotions of the teaching staff of Post‑Graduate Medical Institute (PGMI) and provided a separate cadre for its teaching staff. Prof Dr. Shafiq Ahmad (respondent No.l) on the recommendation of the Selection Board was appointed as Professor by Notification dated 1‑6‑1987. By Notification dated 8‑9‑1988 issued by the Government of Pakistan, Establishment Division, respondent No.l was given Grade‑21 and the Government of N: W.F.P. by Notification dated 14‑9‑1988 granted BPS‑21 to respondent No.

1. The Government of N.‑W.F.P. by Notification dated 15‑10‑1989 directed the amalgamation of the teaching cadres of Khyber Medical College (KMC) and PGMI. While merging these two institutions it was provided that inter se seniority of the holders of the posts shall be determine' on the‑ basis of their continuous regular appointment to the respective posts. The Government of N.‑W.F.P. circulated a joint seniority list of Professors of KMC and PGMI on 10‑3‑1991 and invited objections to be filed till 10‑4‑1991. In this seniority list respondent No.l was shown at S.No.2 and was placed junior to Prof. Dr. Manzoor Ahmad who was placed at S.No.l and has since retired. Thereafter by Notification dated 10th March, 1992 final seniority list of Professors (BPS‑20 and BPS‑21) as it stood on 31‑12‑1991 of the teaching cadre of N: W.F.P. Health Department was issued. In the seniority list of Professors (BPS‑21) Dr. Shafiq Ahmad was placed at S.No.l, Dr. Sirajuddin Ahmad respondent No.l at S.No.3 Dr. M. Tariq Nishtar respondent No.6 at S.No.4 and Dr. Muhammad Kabir at S.No.5. Respondent No.l preferred an appeal/representation on 15‑3‑1992 to the Governor of N: W.F.P. against the said Notification. As no reply was communicated to him within the stipulated period of 90 days, he filed appeal before the Tribunal which was allowed by the impugned judgment.

4. Mr. Zahoor‑ul‑Haq, Senior Advocate Supreme Court for the appellants has contended that the inter se seniority should have been determined on the basis of appointment to a post in cadre and not on the basis of appointment to a grade. The Tribunal seems to be of the view that as respondent No.l had been granted Grade‑21 earlier than the appellant and was also mentioned as No.l in the seniority list issued on 10‑3‑1991, there was no justification to revise the list and disturb the order of seniority by down grading respondent No.l and upgrading the appellants. On the other hand Mr. Abid Hasan Minto the learned Sr. ASC for respondent No.l has supported the view taken by the Tribunal and contended that grant of higher grade is a promotion as held in Government of the Punjab and others v. Muhammad Awais Shahid and others (1991 SCMR 696) and, therefore, respondent No.1 had been rightly shown as senior. Further that even by virtue of the grade which he had attained earlier than the appellants he could not be shown junior to them. The undisputed facts are that the appellants and respondent No.l and similar other doctors were employed in two different institutions which were amalgamated and merged together. The merger order dated 15th October, 1989 provided as follows:‑‑ "

2. Consequent upon the said amalgamation.‑‑(a) the teaching cadres, so formed shall be governed by the rules made by Government of N: W.F.F., Health aired Social Welfare Department vide Notification No.SO(H)1/6‑22/(83, dated 7th October, 1984; (b) the inter se seniority of the holders of posts shall be determined on the basis of .their continuous regular appointment to the respective posts; and (c) Government of N:-W.F.P. Health and Social Welfare Departments Notification No. SOI (H) 1‑144/83, dated 30‑12‑1986 is hereby withdrawn. (Sd.) Chief Secretary, Government of N.‑W.F.P. Endst. No. SOI(HI)1‑1‑192/89, Dated Peshawar, the 15‑10‑1989."

5. It clearly laid down the principle for determining the inter se seniority of the holders of posts which was on the basis of their continuous regular appointment to the respective posts. The holding of post and continuous regular appointment to that post was the determining factor for inter se seniority. Such inter se seniority was between the holders of posts but there is no mention of grades nor does it say that the grade granted to a particular officer shall be taken into consideration for determining inter se seniority. The words "post and grade" convey definite meaning and concept which are attached to them. Post and grade are two different terms relating to service of an officer. `Post' means place and position in service held by an employee. The word "grade" has been defined in Civil Servants (Change of Nomenclature and Abolition of Classes) Rulen,1973 in the following words:‑‑ ??????????? "`Grade' means a , National Scale of Pay in which a post or group of posts is placed." After the change of nomenclature and abolition of classes the posts were placed in grades by which the pay scale was determined. It is, therefore, clear that post and grade are two different terms applicable to the civil servants. In a Finance Division's O.M. No.I(1)‑I&P/83, dated 18‑8‑1983 it was laid down that "basic scale shall not be regarded as grade and shall not be referred to as grades in official communication and that the officials shall henceforth be appointed/promoted to post and not in grade". Therefore from the financial point of view as well it wags the post and not the grade on which appointments and promotions were made. The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 refers to appointment to a post and not to grade. Post may fall into different grades or National scale of pay. The holder of a post is that person who occupies a particular post in service at a particular time and regular appointment to a post is other than an appointment on ad hoc basis and on contract or temporary basis for a speed period. In the background of this discussion reverting back to merger order quoted above, it is clear that the inter se seniority of the holder of posts was to be determined on the basis of their continuous regular appointment to the respective posts. There is no dispute that the appellants and the private respondents were holding the post of Professor but in different grades. Admittedly respondent No.l was given Grade‑21 on 14‑9‑1988 while the appellant was granted on 1‑9‑1990. The appellant was made Professor on 21‑10‑1971, Dr. Muhammad Tariq Nishtar on 21‑10‑1971, Dr. Muhammad Kabir on 24‑12‑1971, Dr. Ashfaq Ahmad on 6‑10‑1974, Dr. Gul Badshah on 27‑6‑1975 and Dr. Shafiq Ahmad respondent No.l on 7‑2‑1977. The basic post at the time of merger held by all the aforestated persons was that of a Professor. Even after Grade‑21 was granted to four of them namely Dr. Sirajuddin Ahmed, Dr. Tariq Nishtar, Dr. Muhammad Kabir and Dr. Shafiq Ahmad, they remained Professors with the benefits of pay allowed to the officers of this Grade, Nothing has been brought on record to show that by granting grade to them they were made responsible for higher duties which may entitle them to claim to have a promotion in post as well. We are, therefore, of the view that persons holding a civil post may be granted higher grade irrespective of the change of the post and in such a situation the inter se seniority shall be determined on the basis of the post held by them as provided by the rules. In the present case Grade‑21 was granted to respondent No.l when he was in a different cadre of service. It was after merger that the inter se seniority was to be determined amongst the Professors. Therefore, it is the post which is the determining factor for deciding the inter se seniority between the civil servants holding the same post. The rules do provide that seniority list amongst the officers of a particular grade or post may also be prepared. But where inter se seniority is to be taken on the basis of the post higher grade for financial purposes will not affect the person holding seniority in post.

6. The learned counsel for the respondent contended that a list had been issued on 10‑3‑1991 which was tentative and as no objection was filed it had become final. In this list respondent No.l was senior to the appellant and other private respondents. According to the learned counsel as it was not challenged it attained finality and could not have been revised or reviewed by the Government. The list dated 10‑3‑1991 was tentative in nature Although the persons shown in the list did not object, does not mean that if before a final list is issued the Government finds but any mistake it is debarred from reviewing or correcting it. The first list seems to have been made basically on the basis of grant of grade and not the post. This was a basic mistake which was corrected by the Provincial Government. The Tribunal was, therefore, not justified in observing that the Provincial Government was estopped from changing the seniority list. We, therefore, set aside the judgment of the Tribunal and allow the appeal.

7. Civil Appeal No. 658 of 1994 has been filed by Prof. Dr. Badshah Gul and his counsel adopted the arguments of Mr. Zahoor‑ul‑Haq, Sr. ASC for Prof. Dr. Sirajuddin Ahmad. This appeal is also allowed in the same manner as discussed above.

8. Civil Petition No. 235‑P of 1994 was filed by the Government of N:-W.F.P challenging the impugned judgment. The learned Advocate‑General has supported the contentions raised by Mr. Zahoor‑ul‑Haq. In view of the above discussion the petition is converted into appeal and is allowed. AA./B‑280/S ????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.