2009 PLP (C (PLC(CS))

KHALIL-UR-RAHMAN RAMDAY, J.

These appeals, through leave of this Court, arise out of a more than decade long, fierce and vigorous struggle between two rival groups of the civil service of Punjab battling for their seniority over each other. Although the matter involved only a short and a simple question yet it appears from the long history of litigation that the two sides had kept themselves, their superiors, their Government, the Service Tribunal and even this Court, busy for the last over ten years, looking for a resolution for the said problem.

2. The private appellants before us are the civil servants who were directly recruited as Extra Assistant Commissioners through the Public Service Commission. They shall, hereinafter, be called the E.A.C. group. The private respondents in these appeals had joined the service as Tehsildars; got promoted in due course and now belong to the same cadre of E.A.Cs. to which the appellants belong. They shall hereinafter be called the Tehsildar group. Since the fate of this controversy depends upon the determination of the date on which the Tehsildars would be deemed to have been inducted into service i.e. the date on which a Tehsildar would be deemed to have been appointed as such, therefore, it would be necessary to notice the process of their induction into service.

3. The appointment of Tehsildars in the Province is regulated and governed by the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 (hereinafter called the Rules of 1962). According to the said Rules, the Appointing Authority for the purpose is the Board of Revenue which makes selection of the persons qualified for direct appointment as Tehsildars. The persons so selected are then required to undergo training, extending normally, upto a period of two years as envisaged by the West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, 1969 (hereinafter called the Rules of 1969) and then to pass the requisite departmental examination and it is thereafter that the said selected persons are posted as Tehsildars.

4. The case of the Tehsildar group is that they should be deemed to have been appointed as Tehsildars on the dates that they were selected against the said posts and that the period spent by them in receiving the above referred training had to be counted towards their service for the purpose of seniority etc. The claim of the E.A.C. group, however, is that the training in question was not an in-service but a pre-service training and that the appointment of Tehsildars should be reckoned from the date on which they were actually posted as Tehsildars after completion of their training and passing of the required departmental examination. To resolve this controversy, we would have to find out the point in time at which a Tehsildar could be said to have been appointed as such and this determination would, in turn, also answer the consequent question about the pre-service or in-service nature of the training in question.

5. Rule 8 of the above mentioned Rules of 1962 has an answer to the question. The same reads as under:

"

8. Training and Departmental Examination.

A person selected for appointment to the service shall, before his appointment to the service, be required to complete successfully such training and pass such departmental examinations and produce such certificates within such period or in such number of attempts as may be prescribed by Government from time to time." (emphasis and under-lining has been supplied)

6. The normal scheme of selection of civil servants and then their appointments against the posts for which they had been selected, as generally known, is that nothing really intervenes between the two except a ministerial order or a notification. But the above quoted Rule 8 has a different story to tell. It clearly prescribes, without any ambiguity, that after a person has been found fit and SELECTED for the post of a Tehsildar and BEFORE he is APPOINTED to the said post, a lot needs to be done i.e. he has, inter alia, to successfully complete the prescribed training and to pass the prescribed departmental examination. And the said prescribed training is a two years training ordained by Rules 50 to 58 of the above mentioned Rules of 1969 and the said departmental examination is the one envisaged by Rule 3 thereof. It, therefore, follows that A PERSON SELECTED for APPOINTMENT does not get appointed as a Tehsildar till he successfully completes the said two years training and passes the said departmental examination. A reading of Rule 4 and others, including Rules 50 to 58 of the said Rules of 1969, would also reveal that a person so selected for appointment is called a 'CANDIDATE' till he has successfully completed the said two years training and has passed the requisite departmental examination and till he is actually appointed/ posted as a Tehsildar. Only to illustrate the said point, relevant parts of some of the Rules of 1969 are reproduced hereunder:

"

4. ELIGIBILITY.

(1) A PERSON SELECTED for recruitment to the service in the rank of Tehsildar (hereinafter in this part referred to as 'CANDIDATE' .." "

50. The CANDIDATES selected for appointment as Tehsildars . (hereinafter in this Part referred to as the Candidates) ." (emphasis and underlining has been supplied)

7. The inference is thus irresistible that a person selected for appointment as a Tehsildar cannot be said to have been appointed to the said post or to have been inducted into service till after he has satisfied the requirements of the above quoted Rule 8 of the said 1962 Rules. In reaching the said conclusion, we are also fortified by the law already declared by this Court through Jamal Khan's case 1994 SCMR

759. In this case Rahim Shah and Abdul Ghaffar had been selected for appointment as direct Tehsildars. But in view of the fact that they had been working earlier as Naib-Tehsildars, the Board of Revenue had dispensed with the requirement of two years training in their case. A question arose as to when would they be deemed to have been appointed as Tehsildars. And this is what this Court had to say in the matter:

"We are, therefore, of the view that though Rahim Shah and Abdul Ghaffar were directly selected for the post of Tehsildar by the Board of Revenue in the year, 1972 but THIS SELECTION DID NOT AMOUNT TO THEIR APPOINTMENT AS TEHSILDARS as in spite of exemption granted by the Board of Revenue in their cases from two years training period prescribed under the Training Rules, they were still required to pass the department examination BEFORE BEING APPOINTED AS TEHSILDARS ." (emphasis and under-lining has been supplied).

8. Having thus examined all aspects of the matter, we find and hold that in case of Tehsildars, a person cannot be said to have got inducted into service on his selection for appointment to the said post but shall be deemed to have been so appointed after he had successfully completed the prescribed training and had passed the required departmental examination and when he was actually posted as a Tehsildar. As an indispensable corollary, it is further declared that the period spent by such a selected person in successfully completing the said training and passing the said departmental examination, cannot and would not be counted towards his service for the purposes of seniority etc. The impugned findings of the Service Tribunal to the contrary are not sustainable in law and are, therefore, set aside.

9. While passing the impugned judgment, the Tribunal was also of the view that the order dated 6-4-2005 passed by the Senior Member Board of Revenue declaring the E.A.Cs. to be senior to the Tehsildars, was of no legal consequence as another member of the said Board of Revenue, had earlier ruled to the contrary. The said view of the Tribunal can also not be sustained. Firstly, because such like orders of the departmental authorities become irrelevant when the matter comes to be decided by the Tribunal which is then the forum to determine the issues in question with the final word being with this Court. And secondly, because the said view of the Tribunal appears to have been formed in ignorance of the provisions of section 13 of the West Pakistan General Clauses Act of 1956.

10. Equally unsustainable is the finding of the said Tribunal vis-a-vis the above mentioned Rules of 1962 and of 1969 being no longer in force on account of being inconsistent with the provisions of the Punjab Civil Servants Act of 1974. We have gone through the said Rules but could not find, in them, any provisions which could be said to be inconsistent with the provisions of the said Act of 1974. Therefore, in view of the provisions of subsection (2) of section 23 of the said Act, the said Rules continue to be in force as having been owned and adopted by the said Act.

11. In view of what has been noticed above, all these appeals are allowed. The impugned consolidated judgment of the Punjab Service Tribunal passed in Appeal No.2374 of 2005 and others and announced on 25-7-2007, is set aside. The seniority of the concerned officers shall now be fixed in accordance with what has been held above. No order as to costs. M.B.A./Q-7/SC Appeals allowed.