1988 PLP (C (PLC(CS))

4. But the Government was clear that appellant is a civil servant and he has been serving to the best of his capabilities wherever he was posted. Therefore, it is the liability and obligation of Government to provide him with a job, as the post against which the appellant had been working ceased to exist on 31‑3‑1981. The Provincial Government realising that the bureaucracy will lead to no result and the matter will be complicated with the passage of time, proceeded to appoint the appellant in Grade‑18 in School cadre vide Notification dated 10‑2‑1985. The other relevant conditions were as under:‑ (i) The officer shall be given a post equivalent to his status, i.e. Grade‑18 post. (ii) His services with the Federal Government will only count towards leave and pension but not towards seniority. (iii) His seniority in the cadre will be counted from the date of rejoining the Punjab Government i.e. 4th August, 1981.

5. The misfortune of the appellant did not come to an end even after the notification of his appointment. The respondent No. 1 did not include the appellant in the Gradation List. The result was that the respondents Nos. 2 and 3, who had joined Grade‑18 post after him and, therefore, were junior to him, were promoted to Grade‑19 on 24‑9‑1985. In this background the appellant was constrained to invoke the jurisdiction of this Tribunal. He has impleaded the Government and respondents Nos. 2 and 3, who, according to him, are junior to him. This appeal was filed on 19‑2‑1986 and came up for preliminary arguments and was admitted to regular hearing on 4‑3‑1986. All the respondents have contested the same, filed their written objections/para wise comments and prayed for the dismissal of the appeal.

6. Learned Counsel for the appellant has argued that the appellant admittedly a civil servant and liability of the Education Department, Punjab, but the lists dealing with the seniority are silent as to the inclusion of his name, for Z and position in the seniority list. The appellant has, therefore, prayed for suasion of his name in the seniority list and for assignment of proper seniority. claim of the appellant is that having been appointed w.e.f. 4‑8‑1981, he was to respondents Nos. 2 and 3, who were appointed in the year 1982 therefore, they are to be treated as junior to him for purposes of promotion etc.

7. It was, however, argued by the District Attorney that the appellant can the seniority in the nationalized cadre from where he was transferred. It was cheer emphasized that Notifications dated 10‑2‑1985 and 20‑8‑1981 do notecase the counting of seniority of the appellant with general cadre. Therefore, cannot compete with the respondents Nos. 2 and 3, who belong to general This arguments is strictly in accordance with para‑wise comments submitted by the respondent No. 1.'

8. The arguments of the learned District Attorney and the comments filed respondent No. 1 do not provide any serious opposition to the claim of the appellant if scrutinized closely. It is only added that since the appellant belongs to nationalized cadre, therefore, he cannot be considered with respondents Nos. 2 d 3, who are in general cadre.

9. The appeal is resisted mainly by respondents Nos. 2 and 3 and their objections are as under:‑

10. It is argued in the firs instance on their behalf that the order of appointment of appellant is illegal. We asked the learned counsel for the appellant to inform us whether this order was impugned by the respondents before any forum. The precise reply was that it was not challenged in any forum. 'Hen we asked the learned counsel for the respondents to show us as to how the order of appointment of the appellant can be attacked at this belated stage and in these collateral proceedings, the learned counsel for respondents Nos. 2 and 3 gifted his stand to the issue that in fact he is not challenging the order but his argument is that the notification dated 10‑2‑1985 cannot be considered for purpose of seniority. This is really a strange argument, which is without any logic and we do not find any merit in it. The order if it is to stand, will stand as a whole once it is conceded that the order is valid, binding, operative and legal, then all in sequences including seniority will follow. The objection is without any merit and respondents Nos. 2 and 3 cannot be allowed to challenge the notification of appointment of the appellant in this appeal.

11. Before concluding our arguments on this point we would like to point out that the arguments of the learned counsel for the appellant that the order is and in law and in this behalf he made a reference to the provision of section 4 of Punjab Civil Servants Act, 1974, and submitted that the appointment of the appellant was not in accordance with the prescribed rules. It is argued that either can be by initial recruitment or by promotion or by transfer. Learned counsel of the respondent No. 2 has vehemently contended that the case of the appellant not covered by any of the modes provided by the legislature for making appointments of civil servants and we have considered the argument of the armed counsel for the appellant and the same is ill‑founded and superficial. It impolitely lost sight of the provisions of section 22 of the Act and rule 23 of the Punjab Civil Servants (Appointment and Conditions of service) Rules, 1974. The same are reproduced as under:‑ Section 22‑‑Nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant m such manner as may appear to him to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule, Rule 23‑‑Chief Minister may, for special reasons to be recorded in writing, relax any of the rules in any individual case of hardship, to this extent prescribed by Government."

12. It is clear from section 22 reproduced above that the Government is fully competent to depart from normal mode of appointment. This section arms the Government with unfettered and absolute powers in respect of appointments. The wording itself makes it clear that all limitations and conditions can be 1 ignored. The qualifying words are `where it appears to be `just' and `equitable'. The same provision is carried out in the rules. Therefore, there cannot be second opinion as to the proposition that the Governor can ignore all provisions of Civil Servants Act and Rules of appointments.

13. In the second place it is submitted that the appellant belonged to nationalized cadre and cannot 6e considered for seniority and promotion alongwith respondents Nos. 2 and 3, who belong to General Cadre. This precisely was the argument of the learned District Attorney on behalf of respondent No. 1 therefore, both will be dealt with together. The argument is not only against facts. The Notification dated 10‑2‑1985 is complete answer to this argument of the respondents. The argument is misconceived and lacks merits. Although the appellant became employee of the Provincial Government on the strength of Notification dated 13‑7‑1982, yet the concerned authorities failed to decide the status of the appellant. The matter remained under consideration for well over a period of 2 years and the Government realised that the matter has been confused, stepped forward, closed the files and issued notification of appointment of the appellant on 10‑2‑1985. This was for all intents aria purposes a fresh appointment. The respondents Nos. 2 and 3, also, have treated the same as fresh appointment. They are blowing hot and cold in the same breath. On the one hand their case is that fresh appointment cannot be made simply by Notification and on the other they are treating the services of the appellant in continuation of his previous/past service. The respondents Nos. 2 and 3 are estopped by their own conduct to treat the appellant, member of nationalised cadre after raising objection to the notification of 1985, where the respondent No. 1 is estopped to put‑forward their arguments after having issued notification of fresh appointment dated 10‑2‑1955.

14. The nationalized and Provincial cadres are dying cadres i.e. one can get out of the same but no fresh appointment is to be made to either of these cadres. The philosophy behind the same seems to be to ultimately have one cadre. The appointment of the appellant being a fresh one, he cannot be a member of nationalised cadre. He is very much, by virtue of his fresh appointment absorbed in the General Cadre and seniority is to be assigned to him m the General Cadre from the date of his fresh appointment.

15. The learned counsel for respondents Nos. 2 and 3, also, raised preliminary objection to the effect that the appeal is time‑barred. It is argued that since the respondents were promoted w.e.f. 24‑9‑1985, therefore, the appeal filed on 19‑2‑1986, is beyond the period of limitation and liable to be dismissed as such.

16. Learner: District Attorney did not subscribe to the preliminary objection and rightly maintained that appeal is within tune acid objection is misconceived and illogical, while the learned counsel for the appellant argued that since tire appellant was ignored for promotion and coming to know of this injustice, he immediately made a representation and he came to know of this fact only when respondents Nos. 2 and 3 were promoted. This representation was not decided within 90 days, therefore, the appellant filed the present appeal within next 30 days as envisaged by proviso (a) to section 4 of the Punjab Service Tribunals Act, 1974. We have considered the argument of both sides. It is admitted position on record that name of the appellant does not figure in any of the cadres/seniority lists, and was not considered for promotion. This being the position the appellant can maintain the present appeal from the date of knowledge. The learned counsel for respondents Nos. 2 and 3 while raising preliminary objections did not keep in view the grievance of the appellant. In fact the learned counsel for the respondents Nos. 2 and 3 while raising preliminary objections lost sight of the grievance of the appellant otherwise the objection is totally devoid of any merit.

17. The upshot of the discussion is we accept the appeal, set aside the impugned order and direct respondent No. 1 to include the name of the appellant in the seniority list of General Cadre of Grade‑18 officers w.e.f. 4‑8‑1981 and promote him w.e.f. 26‑8‑1985 in BPS‑19 when the respondents Nos. 2 and 3 junior to him were promoted. There will be no order as to costs. A.E./225/Sr. P Appeal accepted.