1 971 P L C 1 140[C (PLP)

Muhammad Zubair, appellant No. 2 was recruited as temporary Assistant draftsman in the B & R Branch of the P.W.D. on the 27th November 1954, and has also been confirmed by the above‑mentioned impugned order fro 1‑7‑1963 fire has been promoted as officiating Divisional Head Draftsman from. Sh. Samiullah, appellant No. was recruited as temporary Assistant draftsman also in the, B ‑& R Branch of the P. W. D. on 1‑12‑54 , and was also confirmed from 1‑7‑1963 by the above mentioned impugned order. He was promoted as officiating Divisional‑Head draftsman from 1‑1‑1965. Rao Zaheer Ahmad appellant No. 4, was recruited a temporary Assistant draftsman on 8‑1‑1955 and was confirmed from 1‑6‑65 by the above impugned order. He was promoted as officiating; Divisional Head draftsman in 1970, As will appear from the following particulars of respondents 2‑‑9, they were appointed temporary Assistant Draftsmen from dates earlier than the of appointment oh the appellants. Muhammad Khan, respondent No. 2 who was recruited as a Tracer was promoted as Assistant Draftsman on 14‑2‑1951 and has been confirmed by the above mentioned impugned order from 1‑5‑1962. fie was promoted Gs officiating Divisional Head Draftsman in the 26th September 1963, and as officiating Circle Head Draftsman from 4‑4..1964. He has retired from service from 30th September 1968. Sayyar Ahmed respondent No. 3, a Tracer, was promoted as a temporary Assistant Draftsman on the 16th June 1944. He has been confirmed‑ as Assistant Draftsman by the impugned order from 1‑5‑

62. He was promoted as Officiating Divisional Head Draftsman on 20th June 1963. He has been transferred to the Public Health Engineering Department, where he has been promoted as Chief Draftsman. He has been confirmed as Circle Head Draftsman in the P. H. E. His lien no longer remains in the B & R Department of the P. W. D. He has been confirmed as Circle Head‑draftsman from 1‑6‑1965. Mushtaq Hussain, respondent No. 4 was appointed directly in the P. H. E. Department on 17th June 1946, as temporary Assistant Draftsman, and has been confirmed in that capacity by the impugned order from 1‑5‑1962. On 4‑1‑1955, he was promoted as Divisional Head‑draftsman. He is permanently absorbed in the P. H. E. where he has been confirmed as Circle Head Drafts man, and since then his lien did not remained in the B & R Department. It may be mentioned that P. H. E. and B&R were merged in 1950 but were separated in 1961. Abdul Hamid, respondent No. 5, a Tracer was promoted as temporary Assistant Draftsman from 17‑6‑1946, but he claims that be was so promoted from 27th March 1945. He has been confirmed by the impugned order from 1‑5‑1962 and was promoted as officiating Divisional Head Draftsman from 16‑1‑1956. He has retired from service from 15‑5‑1970. Fazal Hussain, respondent No. 6 was initially appointed as Assistant Draftsman on 8‑10‑1951 and has been confirmed by the impugned order from 1‑5‑1962. He was promoted as officiat ing Divisional Head‑Draftsman from 16‑4‑1962. Abdul Rahim Urfi, respondent No. 7, who wits appointed as temporary Assistant Draftsman on 31‑8‑1941 and has been con firmed by the impugned order from 1‑5‑1962. He has been promoted as officiating Head‑Draftsman from 6‑5‑1962. Under rule 9 of the Punjab Public Works Department, B & R Branch Draftsman and Tracers Service (Recruitment and Conditions of Service) Rules, 1943, seniority of members of the service shall be determined from the date of confirmation and if two or more members are confirmed on the same date, members recruited by Selection promotion shall rank senior to all members recruited otherwise, and members recruited by transfer from other departments of Government shall be senior to members recruited by direct appointment. On 7‑6‑65, the first order of confirmation of the applicants was made but it was expressly stated in it that the dates of confirmation were subject to being notified later. 1t was by the impugned order, dated 30th June 1970, that the date of confirmation of Muhammad Khan, Muhammad Zubair and Sh. Samiullah, appellants was fixed retrospectively as 1‑7‑1963 and of Rao Zaheer Ahmad, appellant as 1‑6‑1965. By the same order the date of confirmation of respondents 2‑9 was fixed as 1‑5‑1962, which date being earlier than the dates of confirmation of the appellants, they are entitled to rank senior to the appellants. The appellants have chosen to file this appeal to challenge their seniority and claim 1‑5‑62 as the date from which they should have been confirmed instead of 1‑7‑1963 and 1‑6‑1965. The basis of the claim of seniority by the appellants vis‑a‑vis respondents 2‑9 is rule 6(i) (c), which provides that appointment to the service shall be made in the case of Assistant Draftsman (i) by the recruitment from the Engineering School, (ii) by appointment from among temporary draftsman and tracers employed in the department on the result of an examination. Since the respondents 2‑9 were not recruited as a result of any examination held, it has been argued that they are not entitled to be confirmed or treated as a member of the service and hence should not have been confirmed from 1‑5‑62 and as vacancies were apparently available from that date, the appellants should have been confirmed instead from that date. The respondents, 2‑9 have been confirmed retrospectively from 1‑5‑62 and discretion rests with the appointing authority to confirm with retrospective effect. The question however remains whether the confirmation is valid because no examination was held and respondents 2‑ have been recruited to the service substantively by reason of their confirmation. It may, however, be mentioned that the order of confirmation states that the unqualified officials have been confirmed as Assistant draftsman, provisionally, subject to the condition that they will pass the departmental examination, when introduced by the Government. In the reply, the respondent No. 1 states that the examination required by rule 6(i)(c) has not been held at least since Integration i.e., 1955. It should be noted that appointment to the service is to be based on the result of an examination and such an examination was no actually held by the Government. If this be the case, the appointments of respondents 2‑9 to the service is not rendered invalid and rights created in their favour are not abrogated by reasons of a default on the part of the Government Department. In fact the rule requiring the appointment to the service as a result of an examination would be deemed to have been waived and the appointments of respondents 2‑9 must be treated as valid appointment. Though the appointment of respondents 2‑9 cannot be held to be invalid, we would mention that it vas the duty of the department to make appointment to the service on the result of an examination, which is ordinarily to be held. As the dates of confirmation of respondents 2‑9 are earlier than the dates of confirmation of the appellants, we cannot grant a declaration of seniority to the appellants. The appeal therefore fails. There is no orders as to costs.