P L D 1990 Supreme Court 725 (PLP)

"That the appellant was promoted as Professor of Medicine on 20‑11‑1973 and Respondent No. 2 got accelerated promotion in 1971 because by accident, in some unattractive specialties such as Orthopedic surgery jobs of Professors had become available earlier as compared to the line of speciality of the appellant viz. central Medicine, therefore, it should not adversely affect the seniority of the appellant." He claimed seniority over the appellant.

3. The Service Tribunal after examining the Service Rules applicable to the parties, particularly Explanation I and Explanation III to Rule 10 of the Punjab Health Department Medical Educational Institutions (Class 1) Service Rules, 1971, allowed the appeal and declared the respondent senior to the appellant. In doing so, a reference was made to another judgment delivered by the Tribunal in a similar case of Dr. (Mrs.) Shamirn Raza Bukhari v. Government of Punjab and another on the same subject.

4. Mr. S.M. Zafarj Senior Advocate, the learned counsel for the appellant, after stating the facts, has taken us to section 7 of the Punjab Civil Servants Act, aid on the strength of subsection (2) contended that the appointment of the appellant being regular, had to be blessed with sanctity and seniority from the date he was regularly promoted, i.e. 10‑7‑1971 and the rules to the contrary must yield. He has referred to the decisions of this Court particularly Government of Pakistan and another v. Junejo Muhammad Iqbal and 58 others P L D 1987 SC 427 at 432, Khizar Haider Malik and others v. Muhammad Raliq Malikand another 1987 S C M R 78 at 82, Inayat Ali and another v. Manzoor Ullah and another 1987 S C M R 407 at 409, Fayyaz Akhtar v. Hafeezur Rahman and others 1988 S C M R 199 at 200 and Salcern Akhtar Blialli and others v. Secretary to Government of the Punjab, Communications and Works Department, Lahore and others 1985 S C M R 950 at 954.

5. The learned counsel for the appellant has also contended that the appeal filed by the respondent was time‑barred and should not have been entertained by the Service Tribunal. For showing that it was barred by time, the learned counsel has relied upon Haji Haider Bux v. Province of Sindh and another 1982 S C M R 582.

6. The Government of the Punjab has also filed an appeal against the same decision and is seeking the application of the rule of seniority in the manner as is sought by the other appellant. It is represented by Mr. Muhammad Nawaz Abbasi, the learned Assistant Advocate‑General.

7. The Punjab Civil Servants Act was enforced on the 4th of June, 1974. Unlike the other laws on the subject, the seniority provision of the Punjab Civil Servants Act, does not contain a provision that seniority shall not be a vested right. As in this case, both the contestants were promoted before the enforcement of the Punjab Civil Servants Act; the appellant on 19‑7‑1971 and the respondent on 20‑11‑1973; the rules governing them in the matter of seniority would be the Rules of Service the Punjab Health Department Medical Educational Institutions (Class I) Service Rules, 1971.

8. In the case of Bashir Ahmad Khan v. Mahmud Ali Khan Chowdhury and others P L D 1960 SC 195 it was held that seniority was a vested right unless the law provided otherwise, that seniority rules were not of that category of manifold rules of service which were not actionable, that rules pertaining to seniority are statutory rules of highest validity and rights of the civil servants have to be determined thereunder. In this background, and particularly the omission in section 7 of the Punjab Civil Servants Act of the words clearly declaring that seniority shall not be a vested right, reference has necessarily to be made to the IF Service Rules of 1971 and not to the Civil Servants Act or the Rules framed thereunder for determining seniority as obtaining in 1973.

9. The relevant clauses of the Service Rules, 1971, which require consideration in the case are reproduced hereunder:‑‑ "

10. 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 persons 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 persons appointed otherwise, with reference to the dates of their continuous appointment therein; provided that if the date of continuous appointment in the case of two or more persons 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, as the case may be. Explanation I ‑‑‑ If a junior officer in a lower grade is promoted to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his juniors in the fixation of his seniority in the higher grade. Explanation II ‑‑‑ If a junior officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that senior officer is also promoted to the higher grade the officer promoted first shall rank senior to the officer promoted subsequently. Explanation III ‑‑‑ A junior officer appointed to a higher grade shall be deemed to have superseded a senior officer only if both the junior and the senior officers were considered for the higher grade and the junior officer was appointed in preference to the senior officer. The substantive rule of seniority enacted in clause (b) of Rule 10(l) of the Punjab Health Department Medical Educational Institutions (Class 1) Service Rules, 1971, reproduced above, is "from the date of Continuous appointment herein". The two exceptions are made to this rule. The first one is contained in that rule itself and is that "if the date of continuous appointment in the case of two or more persons 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, as the case may be." The second exception is found in Explanation I and it is that "If a junior officer in a lower grade is promoted to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his juniors in the fixation of his seniority in the higher grade."

10. The question that arises in these cases is whether a senior who is for reason of qualifications or length of service or for any other reason ineligible to be considered at all for promotion, will regain his seniority against his junior who is otherwise eligible and qualified 'and is promoted when the permanent vacancy occurs and continues in it. Explanation III reproduced above which contains a deeming clause, presupposes the availability of the senior officer to be considered alongwith junior officer for promotion. If the very eligibility of such an officer to be so considered does' not exist, there is no question of his being considered or benefiting from this clause because in any case a person who is ineligible for promotion has to stand at a greater disadvantage than a person who is eligible for promotion but cannot match his suitability for the job. The interpretation given to the rule by the Tribunal makes the entire rule unworkable. If an ineligible and an unqualified senior has to regain on promotion his seniority of the lower grade against the earlier promoted junior, then the seniority of two such promotees cannot be matched with the direct recruits at' all because either the seniority of both the promotees against the direct recruits will be depressed or the seniority of the direct recruits would get depressed by a junior ineligible, unqualified officer who would be gaining against them seniority from the date when he was not so qualified or eligible. The Explanation III is a protective provision preserving the interest of those who are deprived of a fair consideration at the time when they had a right to be considered. It is not a provision rewarding those who are ineligible and unqualified to be considered for promotion against those who are eligible and qualified.

11. The view taken by the Tribunal of the Explanation and without examining its effect on the overall rule is not correct. It was not the case of the respondent No. 1 that for the promotion posts against which the appellant was appointed either the respondent was eligible or qualified to be considered. The very ground taken up and reproduced above shows that according to him (the present respondent No. 1) "by accident in some unattractive specialties such as Orthopedic surgery jobs of Professors had become available earlier as compared to the line of speciality of the appellant (the present respondent No. 1) viz. general Medicine". If the public interest requires the promotion/appointment in a particular speciality, then it is the public interest and not the individual's interest which has to prevail. The individual's interest cannot dictate or control the public interest in matters relating to service. The rules in fact take care of such a situation and all civil servants cannot by very nature of things claim equal right of promotion in all the different branches/specialties, in all the cadres and groups. The public interest may itself control the variations and the individual's interest will not determine or dictate uniformity in such a situation.

12. In the circumstances both the appeals are allowed. The judgment of the Service Tribunal is set aside and the appeal filed by the respondent No. 1 against the seniority list challenging the seniority of Dr. Naseer Mahmood Akhtar, the appellant, in the grade of Professor, before the Service Tribunal, stands dismissed. No order is made as to costs. M.BA./N‑258/S Appeals allowed.