1990 PLP (C (PLC(CS))

(b) By transfer; or (c) By initial recruitment.

7. Now before proceeding any further we revert back to the case in hand. The respondent No. 3 was offered post of Assistant Engineer temporarily on ad hoc basis vide order dated 17-5-1973. It was made clear in this appointment letter that post of Assistant Engineer in C&W Department, Lahore has been placed at the disposal of Public Service Commission, therefore, he was to apply for the same when advertised. Thereafter the post was advertised by Punjab Public Service Commission. The said respondent was selected and as a result thereof fresh appointment letter dated 6-6-1974 was issued. The said respondent after his ad hoc appointment moved respondent No. 1 for grant of advance increments. The representation is dated 18-6-1973 and the claim was that he has more than 6 years' experience to his credit. This representation was accepted and the petitioner was allowed 3 advance increments vide notification dated 23-12-1974. There seems to be yet another move and as a result thereof number of advance increments granted to him was increased from 3 to

5. The order is dated 17-4-1980. It was in supersession of earlier order dated 23-12-1974. This was followed by representation dated 16-11-1973 for grant of benefit of 5-1/2 years' service in WAPDA. This representation was considered at length and rejected vide order dated 14-11-1975. The said respondent did not move against this order but again filed a representation on 15-10-1979 which too was rejected on 17-11-1979.

8. In the meanwhile, the petitioner and others were promoted as Executive Engineers in August, 1976. The Department issued a seniority list of the officers serving in Grade-18 and upward in 1981. Respondent No. 3 was junior to appellants. He did not agitate against this list. The grievance of the appellants is that when the latest list dated 23-i1-1988 was published, the said respondent made a representation for grant of benefit of his previous service in WAPDA and allocation of proper place in the seniority list. This was allowed vide order impugned in writ petitions. The result was that the appellants became junior to respondent 3.

9. Now coming back to the point in issue it is clear from the above resume No. 3 that he was recruited as Assistant of the service career of respondent Engineer on 15-5-1973. The question arises what was the mode of his appointment in terms of rule 3 read with section 4 of the Civil Servants Act. It is nobody's case that it was an appointment by promotion. It was also not appointment by transfer rather it was never the case of the said respondent. This way the only mode of appointment available under law was appointment by initial recruitment. We feel no difficulty in holding that it was an appointment by initial reacruitment and we are fully supported in our view by letter dated 20-6-1973 (Annexure `A/1') making initial appointment and letter dated 6-6-1974 making his, appointment on regular basis after clearance by Punjab Public Service Commission (Annexure `A/2'). In this behalf reference can be made to clause (i) and clause (v) of Annexure `A/1'. The same reads as under:- "A requisition regarding recruitment to the post of Assistant Engineer in the C&W Department, Lahore, has been placed on the Punjab Public Service Commission. You may apply for the same as and when the post is advertised by them." While clauses (i) and (vii) of Annexure A/2 are also relevant. The same reads as under:- "(i) Tenure of post.??????? The appointment will be temporary in the ???????????????????????????????????? first instance and can be terminated on ??????????????????????????????????? one month's notice on either side. (vii) Seniority.?? Your inter se seniority antone the other candidates recruited in the same batch will be fixed in the order of merit in which you have been recommended by the Punjab Public Service Commission for appointment. The date of your joining the Department or any other factor will have no bearing on the fixation of your seniority." Last but not least rather most important document in this behalf is memo dated 14-11-1975 (Annexure `B') Para. No. 2 of this memo clinches the whole matter and reads as under:- "The seniority cannot be given on the basis of past service rendered by Mr. Muhammad Khalid Cheema in WAPDA. He was selected by the Public Service Commission as direct recruit and his seniority will be fixed accordinz to merit list supplied the Commission. This order in fact decided once for all two issues: Firstly; that it is a case of initial appointment. secondly; that seniority was to be fixed by Public Service Commission in terms of merit list."

10. The probation is one of the salient features of initial appointment as is clear from section 5 of the Punjab Civil Servants Act, 1974. In addition to this, Rule 16 is also relevant to hold that it was initial appointment and not the appointment in continuation of the previous service. It is clearly an afterthought. 1t was neither a case of the said respondent nor of the Department at any stage.

11. There are other legal grounds on which the appellants were entitled to relief. The same can be tabulated as under:- Firstly; the date of appointment cannot be ante-dated when one was not actually in service or held the post or was not a member of service. Coupled with this the WAPDA being a statutory body, its employees are not civil servants, therefore, the service of respondent No. 3 could not be made in continuation. Refer Raja Muhammad Iqbal and others v. Additional Chief Secretary, Government of the Punjab 1982 S C M R C 971, wherein it was held that "in the absence of any provision of law or rule governing the situation, they could not claim nor could the Service Tribunal within its power ante-date for the purposes of their seniority, the date of their actual appointment and give them seniority from a period when they were not appointed to the post or to the service". Secondly; the rights of civil servants are to be strictly construed in accordance with the relevant rules of service. In this behalf reference can be made to the case of Ch. Muhammad Khalil v. Ministry of Defence (Secretary) and another P L D 1985 SC 178 at page 181.

12. The appellants and respondent No. 3 were serving as Executive Engineers in 1981. Seniority list was issued. Nobody took any exception to the same. It was only after lapse of 15 years of joining service when the latest seniority list was issued that the respondent took exception to the same. There was no basis to challenge that seniority list. He having accepted the order of rejection of his representation to count his previous service as back as 1975 and on account of his failure to challenge the previous seniority list he was estopped by his conduct to reagitate the matter being a transaction past and closed.

13. The upshot of the above discussion is that we accept these appeals and set aside the impugned judgment dated 25-9-1989 of the learned Single Judge in Chamber. The result is that the writ petitions of the appellants are allowed and the impugned order dated 3-6-1989 is declared as without lawful authority and of no legal effect with costs throughout. M.Y.H./A-924/L????????????????????????????????????????????????????????????????????? Petitions allowed