1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑In this appeal the grievance of the appellant who was promoted as EAC on 11‑7‑1974 under the PCS (EB) Rules of 1964, was that his seniority should have been fixed with effect from 10‑5‑1973 when he was selected by the Punjab Public Service Commission (hereinafter referred to as the Commission). The brief facts of the case are that the Board of Revenue on the 5th of March 1973 recommended the cases of 23 Tehsildars and 12 Naib‑Tehsildars including the appellant (a Naib‑Tehsildar) for inclusion of their names in the Select List `A' in terms of rule 5 (5) of West Pakistan Civil Servants (Executive Branch) Rules, 1964 meant for promotion to the post of PCS (EB). On 29‑3‑1973, the Commission approved the names of 16 Tehsildars only and the case of three Tehsildars, Messrs Shamsher Ali, Mahmood Khan and Bashir Ahmad were left out due to incomplete records. Subsequently, their names were approved on 30‑5‑1973. On 10‑5‑1973 the names of 12 Naib‑Tehsildars including the appellant were also approved by the Commission for inclusion in the Select List 'A'. The nineteen Tehsildars whose names were approved for inclusion in the select list were promoted to the PCS (EB) on the 11th July 1973 by the Government of the Punjab by two separate Notifications. However, it appears that subsequently there was a change in the policy of the Government and it was decided that the vacancies to the Provincial Civil Service will be advertised and the depart mental candidates including Naib‑Tehsildars may also apply for selection through the Commission. We are told that in fact the posts were advertised and the appellant also applied for one of the same and even took up the test. But he did not appear before the Commission for final selection as in the meantime the appellant and other Naib‑Tehsildars succeeded to persuade the Government of Punjab to promote them, otherwise, on the basis of the selection dated 10‑5‑1973. Their promotions were actually ordered on the 11th of July, 1974. In the meantime, the Government had also recruited about 52 Naib‑Tehsildars directly in July 1973. In the seniority list published in 1975 the name of direct recruits appointed in July 1973 figured at Serial Nos. 275 to 306 whereas the name of the appellant appeared at serial Nos.

370. It has been stated before us that respondents 3 to 6, 15, 21, 26 and 32 had joined C S S and were no longer the Members of the Provincial Service. Thus their names were ordered to be deleted from list of respondents on 12‑7‑1978. The appellant represented on 21‑10‑1975 against the aforesaid seniority list but his representation was rejected by the Government on 18‑11‑1975. Hence the present appeal was preferred before this Tribunal on 17‑12‑1975.

2. The learned counsel for the appellant, Rana Mahmood Akhtar pressed the following contentions in support of the appeal: ‑ (1) that the appellant was entitled to the seniority on the basis of the selection made by the Commission on 10‑5‑1973. Since the direct recruits were selected later, therefore, they were not entitled to rank senior to the appellant. Reliance was placed on the decision of the Punjab Civil Services (Appellate Tribunal) reported as Dr. Shaukhat Raza and 2 others v. Government of Punjab and another 1974 P L C Note 39 at p. 20). (2) that the advice of the Punjab Public Service Commission was conclusive and the same has to be followed by the Govt. for determining the inter se seniority of the appellant and the contesting respondents Civil Servants. (Reliance was placed on the decisions reported as 1978 P L C (C. S. T.) 35 and P L J 1973 Tr. C. (Service) 324). In support of his 1st contention the learned counsel cited the following passage from 1974 P L C Note 39 at p. 20: ‑ We held that it was with reference to the sequence of selection by the Public Service Commission that seniority is to be determined in respect of different selections by the Public Service Commission. A person selected in an earlier selection is to rank senior and the right of seniority cannot be denied to him on the ground that there is delay by the Department in notifying his appointment to a post. The basic idea was that the right of seniority should not be tampered with by delay on the part of the office. It was to save the appellant from this consequence that we laid down this proposition that delay in the issue of Notification should act to interfere with the right of the appellant for the purpose of seniority. To elaborate his 2nd point the learned counsel took us through the provisions of the Punjab Public Service Ordinance No. XVIII of 1973 and Act No. 1 of 1974 and the Punjab Service Commission (Functions) Rules dated 28‑2‑1974, according to which the functions of the Commission were to hold examinations and to advise the Govt. as to the terms and conditions of the Civil Servants. He also invited our attention to the provisions contained in Article 223 and Article 229 of the Interim Constitution, 1972, regarding the functions of the Provincial Public Service Commission. He also referred to Articles 231 and 232 of the aforesaid Constitution. Article 231 laid down that if the advice of the Commission was ignored by the Department, the Commission has to be informed as that it should be reported by the Commis sion along with the reasons to the Governor under Article 232 of the Constitution for lying down the same before the Provincial Assembly for discussion. He submitted that the provisions in the Interim Constitution were pari materia with the provisions contained in Article 188 of the Constitution of Pakistan, 1956. He also cited "The Fundamental Law of Pakistan" by Mr. A. K. Brohi (1958 Edition), page 323 to show that the advice of the Commission was binding on the Government and could not be ignored lightly. He further submitted that in the case of Naib‑Tehsildars the persons of outstanding merit and ability only could be recommended for inclusion of their names in the Selection List 'A', as per provisions contained in the rule 5 (5) (a) read with sub‑rules (7) and (8) of the aforesaid Rule of the West Pakistan Civil Service (Executive Branch) Rules, 1964. He thus contained that the advice of the Public Service Commission was binding and the selection made on 10‑5‑1973 should, for all intents and purpose, be deemed to be the date of appointment of the appellant for the purposes of seniority. He relied in this behalf upon 1978 P L C (C. S. T.) 35 and In re: Nazir Ahmad Chaudhri v. Muhammad Nasem Usmani (P L J 1973 Tr. C (Service) 324). He thus prayed that the appeal be accepted and the, appellant be declared senior over the respondent P. C. S. Officers.

3. The learned Govt. Pleader raised the preliminary objection that the appellant in substance was asking for pro forma promotion without which he could not be allowed the seniority over the direct recruits who were appointed in the year 1973, i.e. a year earlier than the appellant. He further submitted that the case of the appellant on the basis of selection dated 10‑5‑1973 was placed before the Government on 8‑11‑1973 upon which the Chief Minister on 27‑12‑1973 ordered not to make the appointment in view of the change in the policy which decision was perfectly within the competency of the Government. Thus, according to the learned Govt. Pleader, in view of Government decision aforesaid the advice of the Commission be deemed to have not been accepted.

4. The learned Govt. Pleader further submitted that the inter se seniority of the appellant and the direct recruits was to be governed by rule 9 of W. P. Civil Service (E. B.) Rules which provides as follows: ‑ "

9. Seniority. (1) The seniority inter se of the members of the Service in the various grades thereof shall be determined‑‑ (a) in the case of member appointed by initial recruitment, in accordance with the order of merit assigned by the Commission ; provided that persons selected for the Service in an earlier selection shall rank senior to the persons selected in a later selection ; and (b) in the case of members appointed otherwise, with reference to the date of two or more officers is the same the older officer, if not junior to the younger officer or officers in the next below grade, shall rank senior to the younger officer or officers. (2) The seniority in the various grades of the Service of members appointed by initial recruitment vis‑a‑vis those appointed otherwise shall be determined as under :‑‑ (a) in case both the officers appointed by initial recruitment and the officer appointed otherwise have been appointed against substantive vacancies, or both have been appointed against temporary vacancies, with reference to the date of appointment to such vacancy in the case of the officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of the officer appointed otherwise Provided that if the dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment." He submitted that rule 9 (1) (a) was applicable to the case of inter se seniority of the persons appointed by initial recruitment and clause (b) applied to the case of members appointed otherwise i.e. promotees, whereas sub‑rule (2) (a) regulated the determination of seniority between the direct recruits and the promotees which prescribed the date of appointment as the basis of seniority. The contention of Government Pleader was that the rule contemplated the determination of the seniority of the members of the Service in terms of rule 5 of the 1964 Rules. Since the appellant became the member of the service on 11‑7‑1974 when he was appointed to the service, therefore, he was not entitled to vie for his seniority with the appointees in the year 1973. He submitted that the date of selection was relevant in he case or determination of inter se seniority between the direct recruits only whereas in all other cases the "date of appointment" not "selection" was the relevant date. Thus unless the appellant was appointed to the Service from an earlier date he could not claim the advantage of seniority against the direct recruits.

5. As regards the approval for the purpose of inclusion of the appellant's name in the selection list 'A' the Government Pleader submitted it merely made appellant eligible for promotion and created no right that he must be promoted as such. He submitted that the appellants case was placed before the Government on 29‑6‑1973 but on 8‑11‑1973 the Government directed that the same may be kept pending as due to the constitutional change as to the definition of Government servant, the matter has to be decided by the Chief Minister. On 27‑12‑1973, the Chief Minister in view of the policy decision taken earlier, directed that the vacancies may be re‑advertised and the appellant may also be advised to apply for the same. The policy decision was incorporated in the West Pakistan Provincial Civil Service (Executive Branch) Rules, 1964 by inserting new Rules No. 5‑B and 5‑C on 20‑12‑1973. The vacancies were advertised accordingly and the appellant did apply for the same but meanwhile he was promoted in July 1974 and did not appear for final selection as he succeeded in persuading the Government to reconsider his case for appointment to PCS on the basis of the approval already granted by the Commission on 10‑5‑1973. However, even approving his appointment it was expressly observed by the appointing authority that the seniority of the appellant will count from 12‑6‑1974 (para 612 of relevant file). The matter was further clarified by paragraph 626 it was laid down that the seniority shall be regulated according to the Rules.

6. The Govt. Pleader also submitted that the contention regarding binding character of the Commission's advice is not correct inasmuch as the Supreme Court of Pakistan has authoritatively laid down in In re: Habibur Rehman v. W. P. Public Service Commission (P L D 1973 S C 144) that the advice tendered by the Commission was merely of an advisory nature and was not conclusive. The following extract from the Supreme Court judgment was complicity relied upon: ‑ "Yet another aspect of the matter may also be noticed, viz., that the recommendations of the Public Service Commission being only advisory in nature and it being open to the appointing authority under Article 188 of the Constitution not to accept its advice, it is difficult to see how a petition of this nature can be maintained, The grievance of the candidate would arise only when the Government has made an appointment in contravention of the rules; until the time the advice tendered by the Commission remains confidential and inchoate and cannot give rise to a grievance or cause of action within the meaning of Article 98 of the former Constitution. Thus the learned Government Pleader pressed the rejection of the appeal.

7. He also submitted that even on the factual plain the contention raised by the appellant was untenable inasmuch as the advice regarding selection of direct recruits was issued by the Commission on 26‑1‑1973 whereas in the case of the appellant it was issued on 10‑5‑1973. Thus the respondent's civil servants were entitled to rank senior to the appellant even on that score.

8. The learned counsel for the appellant in reply submitted that rule 9 was amended by adding sub‑rule (3) on 18‑6‑1970 which reads as under: "(3) Notwithstanding anything contained in sub‑rule (2), the persons appointed in a particular year, otherwise than by initial recruitment, in accordance with the provisions of rule 5, shall, in pursuance of the provision of sub‑rule (9) of rule 5, rank senior to the persons appointed by initial recruitment during that year." The appellant claimed to have been appointed in 1973 and also claimed seniority over the direct recruits appointed in 1973 under the above sub‑rule.

9. After hearing both the parties we are distinctly of the view that this appeal could not succeed. The claim of the appellant to seniority based upon his selection earlier than respondents civil servants who were appointed by direct recruitment in the year 1973 was factually untenable. The respondents had clearly established on record that the Commission's advice in their case was in January as against May, 1973, in the case of the appellant.

10. We also find that there is considerable force in the contention of the learned Government Pleader that the inter se seniority of the direct recruits and the persons appointed otherwise including the departmental promotees will have to be determined by rule 9(2) (a) referred to above which fixes the date of appointment and not the selection as the basis of seniority. Admittedly the contesting respondents were appointed in July, 1973, whereas the appellant came to be appointed in July, 1974. Thus in terms of rule 9(2) (a) they have been rightly ranked senior to the appellant. The ruling relied upon by the appellant reported as 1974 P L C Note 39 at p. 20 was clearly distinguishable which related to the inter se seniority of the direct recruits only. On the other hand the ruling relied upon by the Government Pleader was more appropriately applicable to the facts of the case. The following observation from In re: M. N. Rizvi, C. G. S. v. Province of West Pakistan (1977 S C M R 365) clearly support the contention raised by Government Pleader: ‑‑ "It is no doubt true that there is no relationship between the mode of appointment and the fixation of seniority, but seniority cannot com mence until a person has entered the service."

11. Even otherwise we find that at the time of appointment of the appellant on 12‑6‑1974 the matter of seniority was considered by the Govern ment and it was clearly laid down that the appellant will get seniority with effect from 12‑6‑1974. Thus even according to the terms of appointment of the appellant to the P. C. S. cadre he was not entitled to the seniority earlier than 12‑6‑1974. The respondents having been appointed in 1973 were clearly entitled to the seniority over the appellant. The appellant was never appointed to the Pin the year 1973 and the selection of the Commission C. S. in the year 1973, at the most, conferred a right upon the appellant to be appointed to the P. C. S. cadre. Thus selection by the Commission did not amount to appointment.

12. Secondly the advice by the Commission was neither sacrosanct nor binding upon respondent No.

1. The Supreme Court decision cited by the respondent plainly supported the contention and we respectfully follow the same. The advice was not accepted by the Government in view of the shift in the recruitment policy. A decision to that effect did exist on the file, None of the constitutional provisions referred to by the appellant denied the above power to the Government. Similarly the reliance upon the fundamental law by Mr. A. K. Brohi also did not exclude the power of the Government to ignore the advice of the Commission in an appropriate case. In our view adequate justification was made out by the Government for not accepting Commission's advice in this case.

13. It is common case that rule 9(3) as inserted on 18‑6‑1970 in terms did not apply to the facts of this case. Admittedly, the appellant and the res pondent were appointed in two different years.

14. In view of our findings above, both the pleas raised by the appellant fail. Consequently, the , appeal fails and is rejected with no orders as to costs. Appeal dismissed.