1988 PLP (C (PLC(CS))

Mushtaq Ali Shah (deceased) Assistant whose name appears at Serial No. 19 of the above seniority list had represented against the promotion of the appellants as Superintendents. On the basis of this representation, the issue was considered in the Board of Revenue in consultation with the Commissioners Multan and Sargodha Divisions and S&GAD. It was decided on 23-7-1984 that the Colony staff merged in the District Offices may be considered as new entrants in the District establishment for the purpose of seniority on the precedent of the staff of Thal Development Authority merged in the office of Board of Revenue Punjab. The appellants represented against this decision to the Board of Revenue. The representations were rejected on 3=8-1986 and hence the present appeals.

3. The learned counsel for the appellants submitted that: (1) the appellants were taken into Government service w.e.f. 1-6-1957 in the office of Thal Development later named as Thal Project Colony under Colonization Officer. Subsequently all the Revenue Estates alongwith staff were transferred to the District Administration on 7-1-1970 by West Pakistan Government and vide order, dated 30-5-1979 the seniority of this Colony staff, merged in District Offices was decided to be given from the date of their continuous service in their cadre. Furthermore, the Punjab District Subordinate Service Rules, 1942 clearly laid down that "these rules apply mutatis mutandis to Colony Establishment". _ It .was, therefore, submitted that there was no disparity in the terms of employment of officials working in Colony Offices and District Offices. The subsequent rules which were framed by the' West Pakistan Government by the name of "West Pakistan Revenue Departmental Ministerial District Cadre and Divisional Cadre Service Rules 1964" 'provide at rule 9 that seniority inter se of the members of the; service in the various grades thereof shall be determined in the case of members appointed otherwise with reference to the dates of their continuous appointment in the cadre. It is further submitted that since Haji Nazar Ahmad was appointed as Assistant on 1-6-1957 he ranks senior to Mian Mushtaq Ali Shah deceased who was promoted as Assistant on 16-8-1966 and Raja Muhammad Anwar KV:C. respondent No. 3 who was promoted as Assistant on 14-7-1909. (2) The order of the Board of Revenue dated 30-5-1979 has been acted upon, the seniority list formulated in accordance therewith and the promotions of the appellants were made as Superintendent. Under section 21 of the Provincial General Clauses Act and principle of Locus Poenitentiae, this order cannot be recalled: Reliance in the matter is placed on the cases reported as P L D 1969 S C 407 and 1981 S C M R

523. Temporary promotion is also protected. Reliance is placed on case of Dr. Satdar Mahmood reported as P L D 1983 S C 100. (3) The seniority list was not challenged by any of the respondents when it was issued in 1982. They have, therefore, no right of claiming seniority over the appellants. The learned counsel for the; appellant submitted that there was no discrimination shown in the earlier seniority list. Most Qf the respondents have since been promoted. (4) The case of Mr. Abdul Ouddus and. employees of T.D.A. was decided by the Service Appellate Tribunal on 22-9-1971 and the judgment in the case is fully applicable to the present case as the appellants also belong to the former T.D.A. It is, therefore, prayed that the impugned order of 1984 of the Board of Revenue may be set aside and the earlier decision of merger of T.D.A. staff in the District Offices, dated 30-5-1979 may be allowed to stand.

4. The learned District Attorney on the other hand submitted that the Thal Development Staff was absorbed against the posts sanctioned for the Thal Project Colony w.e.f. 1r6-1957 against temporary posts. It was on 7-1-1970 that the Government of West Pakistan Colony Department decided to place the entire amalgamated field staff under the administrative control of the respective Commissioners and Deputy Commissioners. No merger of colony staff with district establishment took place nor there was any such decision till 2-1-1979. It was on 30-5-1979 when the Board of Revenue decided that the seniority of T.D.A. staff may be determined from the date of continuous service in their cadre. It was submitted by learned District Attorney that this decision could be operative w.e.f. 2-1-1979 because direction of 7-1-1970 was only for placing this staff under the administrative control of the Commissioners/Deputy Commissioners and there was no decision regarding their merger with the district cadre staff. The subsequent decision taken by the Board of Revenue in consultation with SGA & I Department on 23-7-1984 reproduced below, is therefore, logical in the circumstances of this case: The Board of Revenue while taking it very intricate problem had to take up the matter with the Government in the SGA & I.D. for obtaining legal/concrete views. The said Department has viewed that colony staff merged in the District offices may be considered as new entrants to the District Establishment for the purpose of seniority on the precedent of the staff of Thal Development Authority merged in the office of Board of Revenue Punjab after its dissolution on 29-4-1971 with same benefits of service. 1n the aforesaid circumstances it is requested that you may kindly determine the seniority of the colony staff merged in the District Offices in the light of Government of Punjab Services General Administration observations accordingly. It is, therefore, submitted that the appellants have to be treated as new entrants in the common seniority list of the District cadre staff taking their date of entry as 2-1-1979 and not 1-6-1957 or 7-1-1978. The District Attorney further submitted that the Board of Revenue can rectify the mistake in the earlier decision. He further submitted that the facts of the case of Mirza Abdul Quddus were different and that decision had been taken much earlier to the revised decision of B.O.R. taken on 23-7-1984. It was further submitted that promotions of the appellants which were made prior to the issue of seniority list in 1982 was challenged by Mian Mushtaq Ali Shah deceased Assistant and the members of district cadre from Mianwali. The D.A. therefore, submitted that the appeals may be dismissed as these have no merit.

5. The counsel for respondent No. 3 in the second appeal submitted that the name of appellant in that appeal did not exist in the tentative seniority list issued on 26-4-1979 by Commissioner Sargodha Division. The respondent No. 3's name was at serial No. 18 of that list and resultantly he is senior to the appellant.

6. We have perused the paper book and have given our anxious consideration to the arguments of both sides. The Thal Development Authority was established to develop Thal area. It was responsible for development of land, colonization, revenue matters, afforestation, education industrialization, etc., of the area. It performed these functions of state in the specified area. We are of the considered view that there are three distinct phases of transfer of the work of colonization from T.DA. to Government and its complete merger with the work of district administration. In the first phase this work was taken away from T.D.A. and placed under Colonization Officer in Thal Development office created by Government w.e.f. 1-6-1957. In the second phase this function was placed under the control of District Administration on 7-1-1970 by West Pakistan Government. In the third phase it was completely merged in District establishment on 2-1-1979. The staff which was taken into Government service from T.D.A. w.e.f. 1-6-1957 remained altogether a separate group dealing with a specified function in the first A remained In the second phase also it remained a separate entity, though its administrative control was given to Commissioners/Deputy Commissioners. There are no orders of the West Pakistan Government about making the concerned staff as members of Divisional or District Cadre of the Revenue Department. It was only on 2-1-1979 that it was decided that the colony staff functioning at Jauharabad, Bhakkar and Leiah should be merged in the district establishment of Sargodha, Mianwali and Muzaffargarh Districts respectively. We are, therefore, of the view that prior to this date this staff was not part of the District or Divisional revenue cadre as they had not been absorbed in that cadre by any order of the Government nor were they made members of that cadre. Their Government service from 1-6-1957 will count for pay, leave, pension and other financial benefits but not for seniority in the District or Divisional revenue cadre prior to their merger in the said cadre on 2-1-1979, The decision conveyed on 30-5-1979 that this staff should be given seniority from the date of continuous service in their cadre, was therefore, not well-based and has been rightly upset in 1984. The seniority could have been given from the date of merger because prior to that they were not members of this service. The West Pakistan Revenue Department (District Cadre) Service Rules, 1964 will start applying to them from 2-1-1979 and not prior to that. These rules provide for recruitment by initial recruitment, promotion or transfer from specified categories in the schedule to the Rules This staff could not be appointed by promotion or transfer under these rules. They could only be deemed to have been made members of the service by initial recruitment. Seniority in such cases of initial recruitment is given from the date of joining the service. We, therefore, do not agree with the proposition of the learned counsel for the appellants that simply by virtue of their entry into Government service they became members of the Punjab District Subordinate Service under the 1942 Rules and subsequently under the West Pakistan Revenue Department Ministerial, District or Divisional Cadre Service Rules, 1964 on its promulgation. Their formal induction to this cadre by an order of the competent authority was a necessary pre-requisite which is missing in this case prior to 2-1-1979.

7. We have examined the second point raised by the learned counsel for the appellant that the order of the Board of Revenue, dated 30-5-1979 has been acted upon and cannot be recalled The promotions of the two appellants as Superintendents were on ad hoc basis. They were purely temporary and they could be reverted at any time without any notice according to the terms of the promotion order. These did not create irrevocable rights. No valuable rights had been created on the basis of earlier decision because regular promotions of the appellants were not made. These promotions brought in representations and the basis of the decisions dated 30-5-1979 was challenged. These representations were duly considered by Board of Revenue in consultation with SGA&I Department and the above decision was modified in 1984 and the colony staff merged in the District Offices was treated as new entrants in the District Establishment for the purpose of seniority. The promotions of the appellants as Superintendent were made on ad hoc basis and, therefore, did not confer any right for continuing in the post on regular basis. The Board of Revenue had the plenary powers to rectify the mistake view which it did.

8. As regards the point raised by the learned counsel for the appellant that none of the respondents had submitted any objection to the seniority list issued in 1982, we have examined the point. A number of affected officials had already made representations against the promotions of the appellants prior to the issue of the 1982 seniority list and these were forwarded to the Board of Revenue; by the Commissioners concerned, and were pending decision. The non-raising of objections to this seniority list is, therefore, not fatal to their case.

9. We have also perused the judgment, dated 22-9-1971 of the Punjab Services Appellate Tribunal in the case of Mr. Abdul Quddus quoted by the learned counsel for the appellants. The facts of that case are different. Moreover, the decisions dated 2-1-1979, 30-5-1979 and 23-7-1984 of the Board of Revenue which arc material for the adjudication of present appeals were not in existence and were not the subject-matter of that appeal. It is, therefore, not relevant for the consideration of the issues in the present appeals.

10. The upshot of the above discussion is that the appeals are without merit and are, therefore, dismissed. The parties are left to bear their costs. A.E./228/Sr. P Appeals dismissed.