1988 PLP (C (PLC(CS))

(6) He shall have to submit a certificate of domicile in Pakistan. (7) He shall have to submit a certificate of physical fitness from the Civil Surgeon Multan. (8) He shall have to serve anywhere in Pakistan without any claim for additional remuneration. The appellant accepted the post and was relieved w.e.f. 30-4-1982 afternoon to join the new assignment. Vide order, dated 3rd July, 1983 in the Zoological Survey Department, Government of Pakistan, relieved the appellant in the after noon of 3rd July, 1983 and he joined the Punjab Fisheries Department on 4-7 1983. The appellant has been shown junior to the respondents Nos. 4 to 11 in the seniority list issued by the Director of Fisheries on 31-12-1984. The appellant represented against the wrong fixation of his seniority on 9-1-1985. His representation was rejected by the Director of Fisheries vide order, dated 12-3 1985. He submitted an appeal to the Secretary, Forestry against this decision on 7-4-1985 and also against the wrong fixation of seniority. The Secretary Forestry intimated on 9th July, 1986 that there is no provision for a second representation in the rules and as such the representation of the official is not untreatable.

3. The learned counsel for the respondents Nos. 5, 6, 8 and 11 submitted that the present appeal is time-barred because the representation against the seniority list issued by Director of Fisheries on 31-12-1984 could have been submitted under section 21 of Punjab Civil Servants Act, 1974 within 60 days from that date. The representation to Secretary Forestry was submitted on 7-4-1985 after a delay of more than one month. It is, therefore, time-barred.

4. The learned counsel for the appellant submitted that the appeal is within time. He submitted that a provisional seniority list was issued on 1-2-1982 as on 31-12-1981 and the name of appellant appeared at two places i.e. at Sr. Nos. 7 and

9. The appellant applied for correction and was informed on 13-2-1984 that his name will appear at proper place in the revised seniority list as and when circulated. When the present list was circulated on 31-12-1984 his name was shown at wrong place and he again applied for correction and placing his name at the proper place. The learned counsel for the appellant further submitted that this list was not final as would be clear from the following endorsement: "Forwarded to all Fisheries Officers in the Punjab (Incharge of independent office) for information and onward communication to all concerned. Any discrepancies, alterations and additions may be intimated within 15 days of this list, otherwise it will be considered as final. The officers concerned may check the record personally and ensure that the particulars are correct. It is to inform that the date of appointment means regular date of appointment on the recommendation of relevant Departmental Selection/Promotion Committee and not the date of ad hoc appointment as the ad hoc appointment period cannot be considered towards seniority under rules." The appellant pointed out the discrepancy on 9-1-1985 to the Director of Fisheries, i.e., within 15 days as required. It was the rejection of his application on 12-3-1985 by Director of Fisheries which made his position in this provisional seniority list as final. It was further submitted that the appellant rightly went in appeal to the Secretary Fisheries on 7-4-1985 i.e. within 60 days of communication of above order. This was however wrongly treated as second representation by Secretary Fisheries in his communication dated 9-7-1986. The appellant filed present appeal on 19-8-1986 within 30 days of the communication of this order to him on 20-7-1986. We agree with the argument put forth by the learned counsel for the appellant and are of the considered view that in the circumstances of this case, the present appeal is within time. The objection is, therefore, overruled.

5. The learned counsel for the appellant submitted that the appellant was confirmed as Senior Clerk w.e.f. 1-7-1976 and he was promoted as Assistant on 26-2-1981. He went on deputation to the Zoological Survey Department, Government of Pakistan and he continued to retain his lien as Senior Clerk in the Fisheries Department. This lien could not be terminated under rules 3.14, 3.15(6) and 3.17(a) of C.S.R. Punjab Vol. I Part I and on coming back to the present Department he was entitled to continue in the post of Assistant because his juniors were working as such and he had the right to the same position in the list of seniority after return to the parent department because had he not gone to the Zoological Survey Department, he would have continued as Assistant. He further submitted that the post of Assistant held by him in the Fisheries Department was in scale 10 and that for which he was selected in the Zoological Department was also in scale

10. Reliance is placed on the cases reported as P L D 1981 S C 531 and 1986 S C M R 1994,

6. The learned counsel for the respondents submitted that the appellant was selected for the post in the Zoological Survey Department and it was a clear case of initial recruitment in that Department. He therefore, ceased to hold the post of Assistant in the Fisheries Department and he severed all connections with Fisheries Department. On his return to the Fisheries Department he will be the treated as direct recruit and is entitled to seniority in the cadre of Assistant with t effect from the date of his joining the Department on 4-7-1983. He further submitted that the seniority in the grade is given on the basis of continuous appointment vide rule 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. His date of continuance m the Department as Assistant is 4-7-1983 when he came back and not 26-2-1981, when he was initially promoted as Assistant in the Fisheries Department.

7. The learned District Attorney submitted that the arguments from both sides are adequate and he has nothing to add.

8. We have perused the paper book and have also given our anxious consideration to the arguments from both sides. We have also seen the entries in the service book of the appellant. According to rules 3.14, 3.15(6) and 3.17(a) of C.S.R. Punjab, Vol. I Part 1, the lien cannot be terminated unless the civil servant acquires lien on some other post. This lien cannot be terminated even if the appellant had given written consent for the purpose. In the present case there is no evidence available on record or any entry in the service book which may show that the appellant was confirmed as Superintendent in the Zoological Survey Department, Government of Pakistan. We are, therefore, of the view that he continued to hold the lien on the post of Senior Clerk in the Department of r Fisheries, Government of Punjab. The Deputy Director of Fisheries, Multan Division, Multan initially made the following entry at page 20 of the service book of the appellant. Transferred from Fisheries Department to Zoological Survey Department, Government of Pakistan, vide. Director Zoological Survey Department, Karachi Order No. 29-Arid/Mul/82-ZS, dated 3/82 and relieved from Fisheries Department by D.D.F.' Multan on 30-4-1982 (A.N.). This entry was cancelled on 27-4-1988 and following new entry was made by D.D.F. Multan on 27-4-1988: The post of office Superintendent offered to the official vide Letter No. 29-ARID/MUL/82-ZS Director Zoological Survey of Pakistan, Karachi dated the March 1982 and the official is relieved of his duties by D.D.F. Multan on 30-4-1982 (A.N.) The Director, Zoological Survey Department, Government of Pakistan, Karachi made the following entry at page 24 of the service book: Reverted to his parent office, Directorate of Fisheries, Lahore on 3-7 1983 (A.N.). The Deputy Director Fisheries, Multan made the following entry on the same page: Joined his duty as Assistant in Fisheries Department in the office of the Deputy Director of Fisheries, Multan Division, Multan on 4-7-1983 (F.N.) vide Director of Fisheries Punjab Lahore Order No.X (2)E II/14592-14635, dated 11-8-1983. The examination of these entries will show that the Fisheries Department had not intended to cut off connections with the appellant on his transfer to Federal Government and even the subsequent substituted entry does not strengthen the case of the respondents. The appellant remained an employee of the Punjab Government because he was confirmed in it and was working in temporary capacity under the Federal Government even if selected as direct recruit m that Government and had not been confirmed in that post in Federal Government.

9. The plea taken by the respondents that the appellant became surplus in Federal Government and had to be treated as such on his return to Punjab and should have been given the post of senior clerk as of right as he held lien on it and not the post of Assistant is not acceptable. The plea is that he was taken as Assistant by initial recruitment to the Fisheries Department. Had this been the case all necessary formalities for initial recruitment would have been fulfilled. This was not done. The Director Fisheries was not competent to relax the recruitment rules. No relaxation was obtained by him from the competent authority, i.e., Governor or the Chief Minister. This argument has, therefore, no force. In fact had the appellant not gone to serve in the Federal Government, he would have continued as Assistant in the Fisheries Department, as his juniors were working as such. Had the posts of Assistants been abolished and his juniors been reverted as senior clerks, then he would have been given the post of senior clerk on his repatriation from Federal Government to his parent cadre We have not been referred to any provision of law or rules whereby in the circumstances of the appellant one loses his seniority and gets reverted from the post of Assistant to that of senior clerk. The reference made by the learned counsel for the appellant to rule 8 of the Punjab Civil Servants (Appointment and Conditions) Rules 1974 is of no help to them. The date of continuous appointment of the appellant remains 26-2-1981 when he was promoted as such because he was not reverted from this post to that of senior clerk by the complicit authority for valid' reasons. Going to Federal Government on transfer or deputation does not take away the precious right of seniority or the promotion which was earned on that basis and which was acted upon prior to his selection in the Federal Government.

10. The upshot of the above discussion is that we accept the appeal and set aside the impugned orders. The appellant shall get seniority over the respondents Nos. 4 to 11 in the cadre of Assistants and his date of promotion as such shall' be treated as date of continuous appointment as Assistant. A.E./222/Sr.P Appeal accepted.