1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑This appeal is directed against the order of Punjab Civil Services (Appellate) Tribunal, Lahore, dated 6‑11‑1973 vide which the appeal of respondent No. 4 against the present appellant was accepted and his seniority was relegated below Serial No. 11 in the Deputy Collectors' Seniority List published by the Irrigation and Power Department, Punjab, on 9‑2‑1973, as it stood on 1st December, 1972. The appellant initially challenged the above decision before the Lahore High Court vide Writ Petition No. 2141‑S/1973, and on its abatement, he filed this appeal before this Tribunal on 30‑9‑1974. A preliminary objection was raised by the respondent that no appeal against the decision of the Punjab Civil Services (Appellate) Tribunal, was competent. This appeal along with other cases was heard by this Tribunal and it was held by this Tribunals that the A appeal filed under section 8 of the Punjab Service Tribunals, Act, 1974, was maintainable. The decision of this Tribunal was reported in Ia: re: Jaffar Hussain and others v. Punjab Civil Servants (Appellate) Tribunal, Lahore (1978 P L C (C. S. T.) 89).

2. Briefly, the facts of the case are that the present appellant and Respondent No. 4 joined service as Zilladar on 19‑6‑1948 and 20‑I1‑1941 under the Bahawalpur State and the Province of Punjab, respectively. At the time of integration, they were brought on to one Cadre. It is evident that as Zilladar the Respondent No. 4 was senior to the appellant on account of his longer continuous officiation in that grade. In 1963, Zilladars' services were re‑organised. For this purpose, the old Province of Punjab and the former Bahawalpur State's Irrigation Departments were split up into two Regions and their separate cadres were constituted. For governing the conditions of service of the various Regional Cadres, a main cadre was created with main set of rules known as Irrigation Department (Zilladars Service) Rules, 1963 and were promulgated. Sub‑rule (2) to rule 2 reads as follows: ‑ "The services shall consist of Regional Cadres, members of one Cadre not being eligible, save as provided in rule 10 'for appointment to posts borne on any other cadre of service." Rule 10 referred to in the above sub‑rule merely created the general liability of the members of the service to transfer to any place in West Pakistan or to any Department of the Government, Corporation or Agency, Local Authority or a Statutory Body. Its operation for each Regional Cadre was a separate Unit by itself with no connection whatsoever with the other Unit, except in so far as the general liability of the incumbents of the various cadres to transfer to any other place in the Province.

3. The appellant was allocated to the Bahawalpur Region, whereas the Respondent No. 4, was allocated to the Lahore Region. Thus after regionali sing the service the inter se seniority of the appellant and the respondent in the grade of Zilladar had ceased to have any importance.

4. For Zilladars the next appointment in the ordinary line of promotion is that of Deputy Collector. , The Deputy Collector Service was also regiona lised in 1962 and to govern the conditions of service for the Deputy Collectors in the various Regions. Again a main set of Rules known as the West Pakistan Irrigation Department (Deputy Collectors) Service Rules, were promulgated on 3‑9‑1962. The Regional demarcation for the performance of the Deputy Collectors was the same as that of Zilladars. Sub‑rule (2) of rule 5 of the Deputy Collectors Service Rules, stated: "Vacancies to be filled by promotion shall be filled by selection on merit with particular reference to fitness for higher responsibilities from amongst the holders of the posts in the Regional Cadre of the Zilladars Service pertaining the Region where the vacancies occur." Thus a Zilladar in one Region could not be considered for promotion to the post of Deputy Collector which occurred in another Region. In accordance with this rule, the appellant was promoted in Bahawalpur Region as Deputy Collector on 15‑11‑1962 and was confirmed as Deputy Collector on 1‑10‑1966. Admittedly, the promotion against the vacancy of Deputy Collector in the Bahawalpur Region, was available to the appellant only and the respondent No. 4 was eligible to be considered for promotion. Accordingly, the respondent No. 4 was promoted as Deputy Collector in Lyallpur (now Faisalabad) Region on 30‑9‑1968 and was confirmed in the same capacity on 1‑1‑1970.

5. It appears that the opportunity for promotion to the grade of Deputy Collector occurred much earlier in the Bahawalpur Region, Sometime after the promotion of the appellant, there was re‑shuffling of the various Regions and as a result thereof, the respondent No. 4 was transferred to a newly created Multan Region. It is at this stage that the appellant and respondent No. 4 came to serve together in the capacity of Deputy Collectors.

6. The relevant provision, for determining the inter se seniority of the Deputy Collectors in a Cadre, as contained in sub‑rule (1) of rule 7 of the West Pakistan Irrigation Department (Deputy Collectors) Service Rules, 1962, reads as follows: ‑ "In the case of members appointed otherwise, with reference to the date of their continuous appointment thereunder ; provided that . . . . . . ." Since the appellant had been appointed as Deputy Collector much earlier than the respondent No. 4, in accordance with the sub‑rule quoted he was shown senior to respondent No. 4 in the Seniority Lists of Deputy Collectors as published in the years, 1970, 1971 and 1973. But the Civil Services Appellate Tribunal, Lahore, accepted the appeal of respondent No. 4 and declared him senior over the appellant on the ground that he was senior to the appellant in the capacity of Zilladar and thus by virtue of Explanation 1 to rule 9 (1) (b) of the Zilladari Service Rules, he was entitled to rank senior as Deputy Collector, as he was never superseded by the present appellant. The relevant provisions as contained in Explanations I and II, read as under: ‑ "Explanation I.‑If a person junior in a lower grade is promoted to a higher grade on ad hoc basis, in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade. Explanation II.‑If a person junior in a lower grade is promoted to higher grade by superseding his senior and subsequently the latter is also promoted, the promoted first shall rank senior to the one promoted subsequently."

7. We have given our careful consideration to these Explanations and are of the view that the same neither support the conclusions arrived at by the Punjab Civil Services (Appellate), Tribunal, nor they in any manner lend support to the case of respondent No.

4. We have already pointed out that under sub‑rule (2) of rule 5, referred to above, for the purpose of filling posts of Deputy Collectors, the choice was restricted to the Regions to which the promotion posts related. At the time when the appellant was promoted in Bahawalpur Region, the Respondent No. 4 was admittedly not working in the aforesaid Region, but in Lahore Region. Consequently, the question of his being considered on the post of Deputy Collector in Bahawalpur Region along with the appellant did not arise. The Explanations in question are based on the assumption that the junior officials who had been promoted and the seniors who had been passed over belonged to the same Region and both are eligible for the same promotion post. This was not the case here. Consequently, the respondent No. 4 could not take advantage of the Explanation for the purpose of claiming seniority over the present appellant. Thus we regret, we cannot subscribe to and support the conclusions arriv ed at by the Punjab Civil Services (Appellate) Tribunal that respondent No. 4 was entitled to any seniority over the appellant on the strength of the Explanations referred to above. Apparently, when recording the decision. sub‑rule (2) to rule 5 ibid, escaped the notice of the Punjab Civil Services! (Appellate) Tribunal, and the basic assumptions underlying the Explanations that the senior officers must also be eligible for promotion at the time of making promotion to the higher post were not accorded due consideration. Our conclusions above are in line with another decision of this Tribunal report ed as in re: Mushurraf Ahmad v. The Secretary to Government, Punjab, Irrigation Department (1976 P L C (C. S. T.) 29). The following observations may be cited with advantage: ‑ "

9. The appellant was promoted as Assistant on 9‑1‑1961. Though this date was later changed to 1‑5‑1962, but for the purpose of this appeal we shall take the date of his promotion as 9‑1‑1961. The contesting respondents were actually promoted as Assistants on dates subsequent to 9‑1‑1961. However, by a notification issued on 1‑5‑1969, they were given presumptive promotions from dates earlier than 9‑1‑1961. When we inquired for the reasons for these presumptive promotions the departmental representative explained that in the office of the Chief Engineer, West Pakistan, certain posts of Assistants had become available from dates prior to 9‑1‑1961 and the contesting respondents were adjusted against them.

10. The absorption of the contesting respondents in the Multan Region was by way of transfer. Their seniority vis‑a‑vis the Assistants who were already posted in the Multan Region has to be fixed in accord ance with the continuous length of service as Assistants. Since their dates of presumptive promotions as Assistants are anterior in point of time to the date of promotion of the appellant as Assistants, they are entitled to rank senior to him."

8. For the reasons stated above, we set aside the judgment under appeal. Consequently, the appeal of Ghulam Hussain, respondent No. 4 shall stand dismissed and the original seniority list in the rank of Deputy Collectors a published by the Irrigation Department in 1973, shall stand. However, the parties are left to bear their own costs.