1993 PLP 1119 (SCMR)

ABDUL SHAKURUL SALAM, J: ‑‑This order will dispose of Civil Appeals Nos. 334 of 1981 and 198 of 1983, by leave, as these are connected matters. CA. 334 of 1981:

2. Mr. S.M. Ilyas Zaidi, respondent No.1 was a Statistical Assistant when he was "temporarily appointed as Statistician as a purely stopgap measure vice Mr. Muhammad Sarwar granted four months' leave on average pay.

3. Mr. S.M. Ilyas Zaidi assumed charge of the post of Statistician with effect from the 22nd October, 1966 (forenoon). This is vide Notification dated 4th November, 1966. On 13‑5‑1967, reference was made by the Directorate of Industries to the Punjab Public Service Commission for declaring Mr. S.M. Zaidi's suitability for the aforesaid promotion. Commission had not vet approved when One‑Unit was dissolved in 1970 and he was declared surplus. For absorption in other departments in the year 1972 the Commission declared Mr. Zaidi as suitable for promotion as Statistical Officer in the Health Department. Industries Department did not relieve him. On 20‑9‑1976, he was regularized by the Government as Statistician.

4. Appellants Nos. 1 and 2 were appointed on the recommendation of the Punjab Public Service Commission, directly as Industrial Development Officers/Purchase Officers. They joined service on 27‑9‑1968 and 25‑1‑1969 respectively.

5. On 2‑9‑1977 a seniority list was published by the Industries Department in which the appellants were shown as senior to Mr. S.M. Ilyas Zaidi. The latter filed an appeal before the Punjab Service Tribunal on the grounds that at the serial number at which he stood in the seniority list of 1968 as it was on 1‑1‑1968, that should be maintained. The position could not be changed by the subsequent seniority list of 1977. Secondly, that from the date of continuous appointment viz 22‑10‑1966 he was senior to the appellants who joined in 1968 and 1969. The fact that his appointment was regularized on 20‑9‑1976 and earlier he was holding job `temporarily' on `purely stopgap measure', or ad hoc basis would not affect his seniority as it should be determined from the date of continuous appointment. The learned Tribunal after hearing the parties in a detailed judgment accepted the appeal vide order dated 12‑4‑1981.

6. Learned counsel for the appellants has submitted that the reasoning of the learned Tribunal is erroneous and contrary to established principles governing seniority to service. His contention is that seniority starts from the date when an employee enters into service on regular basis. Appointment‑‑‑temporary, stopgap arrangement, ad hoc, is not regular; consequently seniority cannot be counted from such employments. To the contention of Mr. Zaidi which has been accepted by the learned Tribunal that earlier a seniority list was published in 1968 in accordance with the then rules applicable and could not be interfered with, the reply of the learned counsel for the appellants is that that was based on wrong basis that temporary stopgap appointments can give rise to seniority in service, appellants were not party to that list, and in any case, after regularization of service of Mr. Zaidi which took place on 20‑9‑1976 which he accepted he cannot say that it should revert back to a decade earlier.

7. Learned counsel for Mr. S.M. Ilyas Zaidi supported the judgment under appeal and submitted that seniority has rightly been ordered to start from the continuous appointment of Mr. Zaidi.

8. We have heard the learned counsel for the parties at, length and perused the record and judgment under appeal carefully.

9. Mr. S.M. Ilyas Zaidi was appointed `temporarily' as a `purely stopgap measure' on a `leave vacancy', vide Notification of 4th November, 1966. No doubt, he was continuously employed, notwithstanding that the Public Service Commission did not declare him suitable for the post until 1970 when One Unit was dissolved and he was declared surplus. In 1972 the Commission approved his absorption in another Department but he was not relieved. On 16‑9‑1976 the Government ordered that "Mr. S. M. Ilyas Zaidi presently working as Industrial Development Officer on ad hoc basis is hereby regularised against the post of Statistician on regular basis with effect from 1‑7‑1975:" Mr. Zaidi accepted the order without demur. Thus, it is obvious that Mr. Zaidi came in regular service in 1975 and, therefore, cannot claim seniority over others, i.e., the appellants who had come in regular service in 1968 and 1969. Therefore, the learned Tribunal has erred in law in granting him seniority over the appellants. Hence, the, appeal is allowed but in the circumstances the parties are left to bear their own costs. C.A. 198 of 1983. Mr. Munir Ahmad Khan was appointed as an officiating Industrial Development Officer Class‑II in the office of the Additional Director of Industries, Karachi Region, Karachi vide order, dated 3‑2‑1966 for a period not exceeding six months. In 1967, West Pakistan Public Service Commission advertised eight posts of Industrial Development Officers/Purchase Officers in the Office of Directorate of Industries and Commerce, West Pakistan. He and the appellant applied for appointment. He was not recommended. Appellant and others were recommended. The recommendees were appointed by the Government. The appellant joined service on 26‑1‑1969. Having not been recommended by the Commission, the respondent No.1 was served with one month's notice of discharge on 7‑10‑1968. On 9‑11‑1968 he was issued a fresh letter of appointment alongwith others, on ad hoc basis and for affording them another chance to compete with new candidates for appointment through Public Service Commission. The ad hoc appointees continued till 30‑6‑1970 when on the dissolution of One Unit the respondent, being declared as surplus, the Commission recommended him, alongwith others to be absorbed and the respondent against the post of Registrar, Swedish Pakistani Institute of Technology, Gujrat which was also a Class 11 post. However, the Industries Department represented to the Commission for absorption in the Department but the Commission declined. Yet the Department provisionally adjusted him on ad hoc basis with effect from 1‑5‑1972 until the appointment is finally regularized by the Department, which was done vide Notification dated 10‑9‑1977.

2. When in view of the decision of the Punjab Service Tribunal dated 12‑4‑1981, subject‑matter, of the previous appeal, seniority list was published on 8‑7‑1981 and the judgment was not applied to the case of the respondent, he filed an appeal before the Tribunal. It relying on its earlier decision dated 12‑4‑1981, accepted the appeal of the respondent vide order dated 26‑12‑1982. Hence this appeal.

3. Learned counsel for the appellant has contended that alongwith the appellant and others, the respondent No. 1 had competed before the Public Service Commission for the post. The appellant and others were selected and recommended by the Public Service Commission. The respondent was not. The appellant was, therefore, appointed and joined service on 26‑1‑1969. How could the respondent who was provisionally adjusted against the post with effect from 1‑5‑1972 until the appointment was to be regularized which was done on 10‑9‑1977 be granted seniority over the appellant by the Tribunal. Its reliance on its earlier decision dated 12‑4‑1981 is of no avail now because appeal against the decision has been allowed as above.

4. Learned counsel for the contesting respondent No.1 has, however, supported the judgment under appeal and submitted that notwithstanding initial appointment not exceeding six months, the respondent has been continued all through and finally regularized. Therefore, he has rightly been given benefit of his previous service.

5. The simple point involved is that if some people compete, few succeed and others remain behind, the latter cannot be given precedence over the former. The appellant and respondent appeared for the post before the Public Service Commission. The appellant was recommended but not the respondent. The appellant was appointed on a vacant regular post and he joined service on 26‑1‑1969. The respondent was provisionally adjusted against the post with effect from 1‑5‑1972 and he was regularized on 10‑9‑1977. He accepted the position at both stages. It is obvious in the circumstances that he could not claim nor be granted precedence or seniority over the appellant. Appeal against the judgment of the tribunal, on which it has relied for the decision under appeal, has already been allowed. So for all these reasons, this appeal is also allowed but in the circumstances the parties are left to bear their own costs. AA./K‑210/S Appeals allowed.