1977 PLP [C (PLC(CS))

SAAD SAOOD JAN (CHAIRMAN).‑‑This is an appeal under section 10 of the Punjab Administrative Tribt:nal Act, 1974, wherein Mr. Shaukat Ali Shah, Assistant Commissioner, Kharian, District Gujrat, a member of the Punjab Civil Service (Executive Branch) impugns the fixation of his seniority in the seniority list of P. C. S. (I B) issued by the Government vide their notification dated 13‑9‑1973. The appellant has been shown at serial number 223 in the said list whereas the respondents 5‑9 have been shown senior to him at serial numbers 209, 219, 220, 221 and 222 respectively. The copy of the impugned list placed before us does not include the name of respondent No.

4. The appellant challenges the fixation of his seniority qua respondents 4‑9 on the ground that he had ;wined the P. C. S. (EB) on a date earlier than the respondents through an earlier selection and vc as as such entitled to rank senior to the said respondents. His prayer is that a direction be issued to the respon dents 1‑3 to correct the aforesaid seniority list so that he is shown senior to respondents 4‑9.

2. The case of the appellant is that he was appointed and posted to P. C. S. (EB) vide Government notification of 5th June 1967 whereas the respondents 4 and 5 were appointed to the same service vide Government notification of 4‑11‑1967 and respondents 6‑8 by notification of 22nd Novem ber, 1967, and respondent No. 9 still later by notification of 30‑11‑1967, Since the appointment orders in the case of respondents were of dates later than that of the appellant, their appointment constituted a selection and hence he was entitled to be ranked senior to the respondents by virtue of clause (a) of sub‑rule (1) of rule 9 of the West Pakistan Civil Service (Execu tive Branch) Rules, 1964. The said sub rule reads as under: "The seniority inter se of the members of the Service in the various grades thereof shall be determined‑ (a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission ; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection."

3. The question that needs determination is whether under the peculiar circumstances of this case the appointment orders of the respondents, which are later than those of the appellant in point of time, constitute a later selection for the respondents qua the appellant for the purposes of fixation of their seniority under rule 9 (1) (a) of the relevant service rules.

4. The objections filed by respondent No. 1 and data in the relevant departmental file No. 8‑1/69 (So XI) LP 11 relating to the years 1964‑65‑66 made available to us indicate that in March 1965, Government placed a requisition on the Public Service Commission for filling 30 posts (18 perma nent, 12 temporary) in the Provincial Civil Service. Executive Branch (PCS/EB) It is notable that simultaneously a requisition for filling some posts of Section Officers was also placed by the Government on the Public Service Commission. The Commission held a combined competitive examination and there after conducted interviews for making selection for the posts of P. C. S. (EB) and Section Officers along with some other categories of posts. In October 1966 the Government requested the Public Service Commission to recommend 35 more names for P. C. S. (EB), in addition to the requisition for 30 posts already made. As a result of the said combined competitive examination and interviews the Public Service Com mission selected 111 persons against the requisition for filling posts of P. C. S. (EB) and Section Officers etc. The list showing the marks obtained by each of the 111 successful candidates, arranged in order of merits assigned by the Public Service Commission is to be found at pages 88 (A)‑95 of the fore‑mentioned departmental file. This list in fact forms an enclosure with the Public Service Commission's letter dated 24th December 1966 vide which 65 names for appointment to P. C. S. (EB) have been recommended Zone wise. It is observed that .the names were not recommended in the straight order of merit assigned by the Public Service Commission in the fore men tioned list. By taking into account the policy of zonal representation and the preferences expressed by each candidate for various services, the pattern of selection did not conform to the order of merit assigned by the Public Service Commission. This resulted in a situation where some persons who were senior in order of merits were net taken in the P. C. S. (EB) (in spite of having given preference for this service), while their juniors were so taken. It is noted that for above reason the names of respondents 6‑9 were not included in the said list of 65 recommended although they ranked above appellant in the merit list of Public Service Commission. Out of 65 recommended of the Public Service Commission. (i) appointment of two persons (respondents 4 and 5 in the instant case) was deferred on medical grounds; (ii) recommendations in respect of one recommended was withdrawn by the Public Service Commission. (iii) three selected declined to join the service.

5. Consequently, appointment and posting orders of the remaining 59 recommended of the Public Service Commission for P. C. S. (EB) were issued vide Government of West Pakistan, Services & General Administration Department Notification No. SP/8‑1/64 (SOXI), dated 5th June, 1967. The name of the appellant appears at serial number 53 in this notification. To make up the deficiency of 4 posts mentioned at serial No. (iY) and (iii) above, Government of West Pakistan vide their letter of 19th June 1967, approached the Public Service Commission to recommend names of suitable candidates after taking into account the merit position, zonal representation and choice of the remaining candidates. Consequently, the public Service Commission vide their letter, dated 14th September, 1967 recommended the following names: Sr. No. Merit No. 1. 66 Mr. Sultan Mahmood 2. 68 Mr. Mumtaz Ahmad 3. 70 Mr. Muhammad Aslam 4. 71 Mr. Afzal Hayat. Whereas recommended at serial numbers 1, 2 and 4 were previously recommended for appointment as Section Officers, serial number 3 was recommended previously for service in the P. W. R. and the recommendation in his case was provisional, subject to his acceptance. Since Mr. Muhammad Aslam declined to avail of the revised offer to join the P. C. S. (EB) instead of Railway Service, the Public Service Commission vide their letter of 11‑10‑1967 recommended in his place the name of Mr. Akhtar Ali Monga (merit No 72) who was also previously recommended for appointment as Section Officer: It may be stated that all the four persons now recommended for posting to the service of P. C. S. (EB) bad already joined service as Section Officers on various dates.

6. The candidates u hose appointments were deferred on medical grounds were also subsequently declared fit and were appointed to P. C. S. (EB) vide Government of West Pakistan Services & General Adminis tration Department notification dated 4‑11‑1967. Thus all the six unfilled posts out of the total of 65 were filled up‑‑.two by posting the recommended whose appointment was deferred on medical grounds but were declared medically fit subsequently and 4 by fresh recommendations by Public Service Commission as described above.

7. Six persons appointed against the aforementioned 6 vacancies are the six respondents in the instant case. The relevant facts and events relating to the appellant and the six respondents are tabulated below. Sr. No. Name Order of merit Date of appointment order Sr. No. in the Impugned seniority list.

1. Mr. Shaukat Ali Shah (respondent 4) 75 5‑6‑19677 223

2. Mr. Muhammad Latif 35 4‑11‑1967

3. Hamid Ahmad Sethi (respondent 5) 52 4‑11‑1967 209

4. Mr. Sultan Mahmood (Res. 6) 66 22‑11‑1967 219

5. Mr. Mumtaz Ahmad (Res. 7) 68 22‑11‑1967 220

6. Mr. Muhammad Afzal Hayat (Res. 8) 71 22‑11‑1967 221

7. Mr. Akhtar Ali Monga (Res. 9) 72 30‑11‑1967 222

8. As far as the respondents Nos. 4 and 5 are concerned, they were originally recommended of th3e Public Service Commission along with the appellant (vide their letter of 24‑12‑1966) for P. C. S. (FB) and ranked senior to him in the merit list of the Public Service Commission. In their case it was only a case of deferred appointment on medical grounds, This cannot, in any way be construed as a later selection for the purpose of determining seniority under Rule 9 (1) (a) of the relevant Service Rules.

9. The case of respondents 6‑9 however involved some other issues. Our attention has been invited on behalf of the appellant to pure 2‑12 of memorandum of the Services & General Administration Department vide No. So V31‑10 65/,16, dated 12‑10‑1957, as amended by 19tters dated 11‑6‑162, 29‑1‑1964 and 17‑4‑1965 (which appears at pages 505‑527 of O & M. Establishment Manual Vol. 11‑1966 Edition) and lays down the procedure to be observed by Administrative Departments and Attached Departments in their dealings with the West Pakistan Public Service Commission. It has, however been urged on behalf of respondent No. 1 that this para has to be read along with the preceding para 2.11. The two paras read as under: "2.11. The Commission will be required to send the name of only one candidate for each post with certain name, as reserve, if required, given in order of merit. The number of reserves, which the Commission should be asked to recommend shall not exceed. One in the case of two vacancies or less two in the case of three to seven vacancies r three in the case of eight to twenty vacancies; four in the case of twenty to forty vacancies; ten in the case of vacancies exceeding forty. 2.12. The principle underlying instruction 2.11 is that the advice of the Commission should be sought regarding the filling of specified post and that there should be defined recommendation on each occasion when their advice is sought. The idea of asking for additional names is to appoint the next candidate recommended in order of merit if the candidate recommended for the post fails to pass the medical examination. or does not join within the time specified by the Department. Such list of additional names will be valid for six months only from the date of the Commissioner's recommendations. It will be against the spirit of Article 188 of the Constitution to maintain a waiting list from among the candidates recommended in reserve and to fill from ft vacancies falling afterwards or which has not been reported to the Commission for advice at all. The proper course when any subsequent vacancy occurs is for the Department concerned to make a fresh reference to the Commission though there would be no objection to the Commission taking into consideration persons who may have been previously recommended but were not actually selected. The Department while sending a requisition, may mention the number of vacancies at the time any additional number of vacancies that are likely to occur in the near future so that the Commission may take the opportunity to select more candidates than the number of actual vacancies at the time of reference and recommend them later when a reference is made for filling additional new vacancies."

10. The learned counsel for the appellant argues that In the light of portion underlined in para 2.12 above, the mere fact that the Public Service Commission had chosen to make fresh recommendations out of the names already selected by it does not make it the 'same selection', as the Public Service Commission could adopt such a course even for a 'later' selection.

11. A plain reading of pares. 2.11 and 2.12 shows that the portion of para 2.12 relied upon by the learned counsel for the appellant would be applicable in the case of vacancies "falling afterwards or which have not been reported to the Commission for advice at all."

12. As has already been seen the 4 vacancies against which respondents) Nos. 6 to were posted were included in the original requisition for 65 posts placed by the Government with the Public Service Commission. These vacancies were never filled up as the 3 selected for these posts declined to join and the recommendations with respect to one was withdrawn by the Public Service Commission. The vacancies, therefore, had neither fallen afterwards nor were of the category, which were not reported to the Commission for advice at all. We therefore find no force in the appellant on this score.

13. The stand of the Administrative Department appears to be that respondents Nos. 4 to 9 as well as the appellant were recommended for appointment on the basis of the same competitive examination therefore, irrespective of the dates of the issuance of their orders of the appointment they should be treated to have been selected as a result of the same selection. On the face of it this argument appears attractive, but after giving it out careful considerations we are unable to accept. Although the competitive examination is a part of the process of selection, but‑the latter means much more than that. All candidates who quality in the competitive examination are not automatically selected far appointment to the service. On the other hand, out of the candidates who have qualified in the examina tion a further selection takes place. If the intention of the, proviso to, clause (a) had been that alt candidates selected out of one competitive examination should be accorded seniority in accordance with the result of the competitive examination irrespective of their final selection to the service, clause (a) would have specially stated so. As the clause stands, the emphasis is clearly on the word selection and we can take it as referring to final selection alone.

14. The learned counsel for the appellant has also drawn our attention to the judgment of the former Civil Services appellate Tribunal in cave No. 77/41 of 1972, dated 12th July, 1472, Muhammad Salim v. Province of the Punjab and others This precedent supports the view taken by us. There the dispute arose between appointees to the service of Section Officers. The facts of this case in respect of the appellant qua respondents Nos. 37 and 38 (Mr. Nasir A. Malik and Mr. Rafiq Gill) are on all fours with the facts of the instant case and are reproduced below from the cited judgment: "The names of Mr. Nasir A. Malik and Mr. Rafiq Gill, respondents did not figure in this recommendation of selection by the Public Service Commission. Three of the seven persons who were recommended for appointment is the P. W. R. were declared medically unfit. We are told that medical unfitness was based on a high standard of eyesight required by the Pakistan Western Railway. The Public Service Commission in their letter dated 6th May 1957 wrote to the Additional Chief Secretary, Government of West Pakistan stating that in view of the different higher standard of medical fitness required for the Pakistan Western Railway Service the West Pakistan Service Commis sion had decided in principle to accommodate the three candidates who had been declared medically unfit for service in the Pakistan Western Railway in W. P. C. S. (EB) or Section Officer Service. Out of the 23 persons recommended by the P. S. C. for selection as Section Officer, 4 persons did not accept the offer of appointment as Section Officers. The Government intimated to the P. S. C. on 31 August, 1967 that 4 persons recommended for appointments as Section Officers had not accepted the offer of appointment, therefore, the P. S. C. recommended on 5th October 1967, the names of Mr. Nasir A. Malik and Mr. Rafiq Gill along with two others to fill the 4 vacancies. When the appellant appeared for medical test he failed in it In respect of him, the P. S. C. wrote to say that on the question of providing a substitute in his place as desired in its letter dated 24th April, 1967, Government should intimate the final result of the medical examination in his case before further action is taken in the matter. The appellant was, however, declared typically fit by the Appellate Medical Board. When the representations made by Mr. Nasir A. Malik and Mr. Muhammad Rafiq Gill and another regarding their seniority were referred to the P. S. C. the Commission advised in their letter dated 18‑8‑1970, that the seniority of candidates recommended by the Commission will be governed by the order of merit as determined by the marks obtained irrespective of the fact whether the recommenda tions were made simultaneously or in instalments"

15. As regards the question whether in the above case the posting of respondents Nos. 37 and 38, which are subsequent in point of time to that of appellant constituted a later selection (which is also the material question in the instant case), the cited judgment reads as under: "The question for consideration whether the appellant is senior to Mr. Nasir A. Malik and Mr. Muhammad Rafiq Gill, respondents Nos. 37 and 38 who are direct recruits. The appellant claims seniority over them on the ground that they were selected in a later selection by the P. S. C. while the contention of these respondents is that they were selected in: the same selection and having achieved higher order of merit, they are entitled to rank senior to the appellant under rule 9 (a). This rule provides that the seniority inter se of members of the service in the various grades thereof shall be determined in the case of members appointed by initial recruitment in accordance with the order of merit assigned by the Commission; provided that a person selected for appointment to the service in an earlier selection will rank senior to a person selected in a later selection. The material question thereof, to decide is whether on the basis of the higher order of merit in the examination achieved by the two respondents they are entitled to rank senior to the appellant, or whether the appellant was selected for appointment in a, selection and the two respondents, were selected in a later selection. We have full sympathy with the two respondents on the ground that they achieved a higher order of merit in the competition. While Mr. Nasir A. Malik and Mr. Muhammad Rafiq Gill were at Nos. 10 and 49 respectively in order of merit, the appellant was at serial number 84 in the order of merit. It was in view of the higher order of merit attained by the two respon dent that they were selected for appointment as Assistant Traffic Commercial Officers in the P. W. R. but they were not selected as S. Os. in the list of 23 officers recommended by the P. S. C. for appointment of S. Os. It is a misfortune of these two respondents that they were not appointed as Assistant Traffic and Commercial Officers in the Pakistan Western Railway by reason of falling short of the required eye‑sight standard and having been rejected by the Pakistan Western Railway; the P. S. C. decided to absorb them either in the P. S. C. or in S. Os. Service. It was fortune for them, however, that four of the officers to whom posts of Section Officers were offered, declined to accept the posts, and it was against those 4 posts that the two respondents and two other were recommended by the P. S. C. on a later date for appointment as S. Os. The material consi deration being "selection there can be no doubt on the peculiar facts of this case that the appellant was selected in an earlier selection and thus the appellant is entitled to rank senior to these two respondents. If the two respondents had been taken in the P. W. R. they would have had better prospects before them but it was their misfortune that they failed in the required standard of eye‑sight. There is no escape from the proposition that 23 were select in the first selection by the P. S. C. and the appellant was one of them while the two respondents were not included in that list. Their names were recommended for appointment to the service in the letter of the P. S. C., dated 5‑10‑67 when the appellant had been selected and named in their letter dated 28th December 1966. These two respondents have strongly relied on the advice of the P. S. C. dated 18‑8‑1970 to the effect that seniority of the candidates recom mended by the Commission is governed by the order of merit by determining the marks obtained, irrespective of the fact whether the recommendations were made simultaneously or not. In the application of this principle no hardship is caused because the P. S. C, makes recommendations in the order of merit obtained as a result of the marks and normally a person in the second selection is lowered down in the order of merit than the person named in an earlier recommenda tion. In the present case, the two respondents were higher in the order of merit, but were recommended later and were it not for tee fact that the 4 out of 23 persons were offered appointments as Section officers had declined to accept the other two respondents and two other could not be offered appointment as Section Officers."

16. For the reasons stated in the above‑quoted judgment we have no hesitation in holding that the appointments of respondents 6 to Q were through a latex selection in terms of Rule 9 (a) of the relevant rules and the appellant should rightfully be placed in the seniority list above these respon dents. It may also be pointed out that in spite of their higher position in the order of merit assigned by the P. S. C. and notwithstanding the fact that they had given first presence to join P. C. S. (E8), the respondents originally failed to get appointment to the said services the appellant was successful in getting appointment to the service in preference to them. It therefore, does not stand to reason that by getting an entry into the service at a later date by the chance default of some of the earlier selected candidates, they should steal a march over the appellant. We, therefore, accept the appeal to the extent that the seniority of the appellant qua respondents 6‑9 is set aside and we direct that the seniority should to that extent be revised placing the appellant senior to respon dents 6‑

9. Before relinquished charge the learned Chairman had seen draft of the order and had concurred in it.