1981 PLP (C (PLC(CS))

ABDUL JABBAR KHAN (CHAIRMAN).‑The appellant, Mian Khurshid Ahmad, has filed an appeal against the seniority list (final) of Ministerial Establishment of offices of the Director Health Service, Punjab, Deputy Director Health Services of Divisions, Small‑pox Eradication Programme, Drugs Testing Laboratory and Health Equipment & Maintenance Organization, Lahore as it stood on 1‑3‑1971 and circulated on 26‑6‑1973 when the appellant was out of service. The appellant has made a grievance that his seniority has been marred by the above seniority list which may be set aside and his seniority restored.

2. The brief facts of the case are that the appellant had the misfortune in his service to be proceeded against under M. L. R. 114 but was re‑instated in pursuance of M. L. O. 23 promulgated by the Chief Martial Law Administrator on the recommendation of the Review Board by the Chief Secretary to Government of Punjab. He was posted to Samli Sanatorium as Head Clerk in N. P. S. 10 (the same scale he was holding at the time of his compulsory retirement) by the Director Health Services, Punjab and thus joined on 18‑2‑1978 at that place. The appellant was put on special report pertaining to his work and conduct and after completion of the same he was recommended for promotion by the District Health Officer, Vehari. The same officer had recommended his case for promotion even earlier, i.e. July 1978 against a vacant post in the Communicable Disease Control Programme, a section under the control of the District Health Officer, Vehari, which post was in N. P. S. 16.

3. Sh. Mohd. Shafi Anwar, Head Clerk, Mental Hospital, Lahore, Mr. S. F. A. Kazi, Head Clerk, Lady Walingdon Hospital, Lahore; Mr. Asghar Ali Jafri, Head Clerk, Public Health Nursing School; and Mr. Riaz Ali Shah, Head Clerk, Institute of Hygiene & Preventive Medicine, Lahore were promoted as Superintendents in the wake of Health Department letter No. S. O. 111‑7‑8‑70 dated December, 1971 and thus appellant was deprived of his seniority, fact being that he stood senior to all of them. The appellant filed a representation addressed to the Advisor to M. L. A. Governor Punjab on 15th March, 1979 with an advance copy to the Secretary Health Department, seeking redress against the above said promotion order. This representation was processed through the Director Health Services, Punjab, vide District Health Officer, Vehari's letter dated 17‑3‑1979. Despite this representation and repeated requests his seniority was not restored. Hence the present appeal.

4. We have heard the learned counsel for appellant and the Govern ment Pleader and have also perused the record of this case carefully with their assistance. It has been submitted on behalf of the appellant that the Government of Punjab vide their letter dated 5th July, 1978 had restored the right of normal seniority in the grade in which the reinstated officials were serving at the time of their retirement under M. L. R.

114. Similarly the re‑instated officials were to be granted promotion on the basis of their normal seniority vide paras. (d) and (c) of the said letter. It was further argued that the appellant stood at No. 4 in order of seniority eligible for the post of Senior Superintendent (N. P. S. 13) and thus he has been shown on 1‑12‑1968 in the above list as senior to the respondents officials in this case. The learned counsel has also pointed out and has laid sufficient emphasis on the point that the appellant was a recommended of the Director of Health Services as his work was found excellent and he was considered efficient in the job. Reliance in this behalf has been placed on D. O. letter No. 9084‑C dated 19‑11‑1978 wherein the work of the appellant has been strongly commended, and another D. O. letter No. 1757‑C dated 20‑2‑1979 in which promotion of the appellant has been strongly recommended. The learned counsel has also referred to Annexure 'K' on record (Govt. letter No. 50111‑7‑8‑70, dated 9‑12‑1971 addressed to Director Health Services) wherein in paragraph 6, it stood clearly admitted that the appellant was senior to the persons against whom he had made representations. It was also directed in the said letter that the list should be prepared and maintained according to the seniority list as it stood on 9‑12‑1965 and promotion of the appellant should be implemented if he was otherwise found fit.

5. The learned Government Pleader, assisted by the Departmental Representative, has submitted that the case of the appellant was distinguishable on the ground that appellant was working in a special institution on 9‑12‑1965, at the Institute of Hygiene & Preventive Medicine, and later, at the time of his retirement under M. L. R. 114, he was working in the Punjab Vaccine Institute, Murree, on 18‑3‑1972. According to the Government Pleader the appellant belonged to the special institution and, therefore, he was not eligible to seek promotion amongst the subordinate cadre which was under the control of the Health Directorate, as, according to him, the special institutions were controlled by the Secretary, Health Department. In view of the above submissions the learned Government Pleader maintained that the case of the appellant suffered from misjoinder as Secretary Health has not been made a party and reiterated that although the appellant was a senior person but he should seek his seniority from the cadre to which he belongs. When it was pointed out that Kazi Abdul Qaddus and Mr. F. S. A. Kazmi were promoted as Superintendents belonging to the special institutions, it was conceded on behalf of the department that their promotion was due to misconception and error but since they had retired, their case would not affect the merit of the appellant's case.

6. We have given our anxious thought to the points raised on behalf of the appellants as well as the stand taken by the respondents through the Government Pleader. We find that the final seniority list of the Ministerial Establishment of the Health Department including the names of all the eligible Head Clerks and Senior Accountants for promotion as Superintendents and onward, in pursuance of Government notification dated 9th December, 1965 as it stood on 1‑3‑1971, was circulated irrespective of the fact whether one was serving in a special institution or any other subordinate office, and this seniority list remained operative till 24‑2‑1974. We also find the appellant's name at No.

8. We also notice that opposite Kazi Abdul Qaddus and Mr. F. S. A. Kazmi Head Clerks (pertaining to so‑called special institutions) intermingled for Mr. Asghar Ali Jafri and Mr. Riaz Ali Shah (pertaining to subordinate offices). This by itself would show the anamolous stand of the Department vis‑a‑vis the case of the appellant. We further fail to understand that the appellant, who is categorised as member of the special institution, has been working in the subordinate office at Vehari and other places at the time he filed the present appeal. With regard to the arguments of the respondent that for appellant's promotion etc. had to be made by the Secretary, Health Department, and not by the Director Health Services we find it without force. If the appellant was amenable only to the orders of the Secretary Health in the matter of promotion etc. we would not have found on record the appellant's transfer orders from time to time issued by the Health Directorate. This fact itself negates the force of the respondents' argument. It is also pertinent to note that the Punjab Vaccine Institute, Murree, the place wherefrom the appellant was retired on 18‑3‑1972, was administered by the Director Health Services not by the Secretary Health. We would also like to refer to the argu ments of the respondents that the appellant by his own representations has been insisting for his posting to the special institution. While examining this point we find that although the appellant was posted to Government. Sanitorium, Samli on 18‑2‑19'78, on his reinstatement, he was transferred to Vehari within two months of his stay. This fact would show that the duel of classification and category of the appellant as woven by the respondents before us stands torn apart by the action of the Depart ment itself.

7. In view of the above we have no hesitation to hold that the seniority of the appellant had to be recognised and considered vis‑a‑vis the list so maintained in which he has been shown as senior to his contesting respondent and he for all times would be considered to be member of the subordinate service and would be eligible and be a rightful claimant of the seniority from the same cadre. We therefore proceed to accept this appeal and direct the Department to restore the seniority of the appellant which has been superseded under the misconception of category of service. There would, however, be no order as to costs. Appeal accepted.