1994 PLP (C (PLC(CS))

(2) Ch. Wali Dad. (3) Muhammad Ayub Khan. (4) Muhammad Khan Mahmood. (5) Manzoor Ahmad. The order of preference given in Government Order No. 3832‑34/72, dated 4‑12‑1972 of appointment of appellant and respondents is as given below: ‑‑ (1) Ch. Wali Dad. (2) Mirza Ghazanfar Ali. (3) Muhammad Khan Mahmood. (4) Muhammad Ayub Khan. (5) Manzoor Ahmad.

5. The learned counsel for the appellant argued that appellant reported for duty on being appointed as Headmaster first in point of time to respondents Nos. 3 to

5. His date of appointment shall be taken as the date on which he submitted his joining report. He, therefore, ranks senior to respondents Nos. 3 to

5. We have considered this argument in the light of averments made by the parties in their pleadings. In para. 12 of memorandum of appeal appellant has said that the seniority is determined under the provision of Article 24 KSR as the departmental service rules were not in force at that time. The recommendations of the Public Service Commission, therefore, cannot be relied upon. In reply to this claim of appellant all the respondents have stated in their written objections that in the matter of seniority Article 24 KSR is applicable. They have, however, claimed that the order of preference laid down by the Public Service Commission shall be the only basis for determination of inter se seniority of the parties. The order of appointment Annexure `B' is dated 4‑12‑1972. It is not understandable as to how appellant joined his duty one month prior to this Government order. Respondent Wali Dad in para. 4 of his written objections had tried to explain this position by saying that the date of joining report one month prior to the issuance of order dated 4‑12‑1972 is doubtful and appears to have been manipulated. The parties are not at any disagreement as to the application of Article 24 KSR in this case. Appellant considers the date of joining report as the date of his first appointment whereas the respondents claimed their seniority on the order of merit fixed by the Public Service Commission. The seniority of the parties is to be determined in the manner laid down in Article 24 KSR. The relevant portions of Article 24 KSR (a) and (b) are reproduced below: ‑‑ "(a) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade, as the case may be. (b) Where the date by which seniority is determined under sub‑rule (a) is the same in the case of two or more members of a service, class, category or grade. Their seniority inter se shall be determined by the order of preference laid down by the Appointing Authority in their case, if no such order of preference is laid down, or in case of doubt, seniority shall be determined by the Appointing Authority."

6. According to this Article the seniority shall be determined by the date of first appointment to such service, class, category or grade. Government in view of the recommendations of the Public Service Commission issued the appointment order fixing the order of preference which was different from the order of merit laid down by the Public Service Commission to the extent that respondent Ghazanfar Ali was placed at serial No. 2 instead of assigning him first place. The order of preference laid in the Government order dated 4‑12‑1972 is to be followed in view of the provisions of Article 24 KSR wherein it has been provided that the seniority shall be determined by the date of first appointment to such service, class, category or grade. The order of preference laid down by the Public Service Commission is to be followed if the Appointing Authority has not fixed the order of preference or in case of doubt. The Appointing Authority might have erroneously laid down the order of merit slightly different to that of the Public Service Commission but this position cannot be disturbed after a lapse of about twenty years.

7. A perusal of order of appointment made on the recommendations of the Public Service Commission shows that appellant was shown at serial No. 3 whereas respondents Wali Dad, Ghazanfar Ali and Muhammad Ayub were shown at serial Nos. 1, 2 and 4 as against the recommendations of the Public Service Commission wherein in the order of preference appellant was at No. 4 and respondents Ghazanfar Ali was at No: 1 and respondent Muhammad Ayub was at No. 3, Ch. Wali Dad was placed at No.

2. Secretary, Education vide his order dated 28‑11‑1987 restored the order of merit determined by the Public Service Commission. Appellant was placed at serial No. 3 in order of preference by the Appointing Authority which in this case was the Government. The Secretary, Education had no authority to disturb the order of preference which was determined by the Government. If the order was defective and suffered from any legal infirmity only the Government could review its order if any aggrieved person had within stipulated period filed any review application against the order. The order of Secretary, Education dated 28‑11‑1987 to the extent indicated above cannot hold the ground and is to be set aside accordingly. It was argued on behalf of appellant that the respondents failed to file any objection to the seniority lists. It is on the record that the Department issued three lists mentioned above. Respondent Ch. Wali Dad appears to have requested for granting him his right place in the seniority list. Secretary, Education accepted his representation and ordered the amendment of seniority list in accordance with the order of merit determined by the Public Service Commission. There is nothing on the file to suggest that the Department prepared a final seniority list and was being maintained accordingly. The Department has issued three seniority lists one after the other. The Department has not completed the process of finalisation of seniority list. In absence of final seniority list no weightage can be given to the provisional lists prepared at different occasions. The argument is repelled.

8. In light of above discussion we, therefore, accept this appeal and set aside the impugned orders and direct that appellant and respondents Nos. 3 to 5 may be placed in order of merit as was given in their order of appointment dated 4‑12‑1972. No order as to the costs. H.B.T./229/SrA Appeal accepted.