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Case No. 454/177 of 1970, decided on 17th May 1971.

r. 9(1)(a)‑Person selected in earlier' selection‑Senior to that selected in subsequent selection‑Persons selected in same selection‑ Seniority to be determined on basis of merit assigned in selection.

----rr. 8 & 9‑Appointment‑Passing of departmental examination‑Requirements of r. 8 have no retrospective effect‑Provisions of r.8 cannot operate to invalidate appointments made before application of Rules‑Seniority‑To be determined according to provisions of r. 9‑‑Passing of departmental examination, held, not relevant for purposes of seniority.

Sarwar Hayat Khan appellant was selected as (A class) direct recruit by the Commissioner, Multan Division in the Selection made on 10‑4‑60. He was at No. 5 in the order of merit in that selection.

He was posted us Naib‑Tehsildar on 5th June 1962. He passed the departmental examination in 1966. By this appeal under section 4 of the West Pakistan Civil Services (Appellate tribunals) Ordinance, 1969, he claims seniority over respondents 2‑17, under rule 9 of the West Pakistan Tehsildari and Naib- Tehsildari Service Rules, 1962 notified on the 5th January 1963.

The facts of this case are about the same as in the case of Ch. Shaukat Ali, appellant.

Mr. Muhammad Nawaz Makhdum, respondent No. 2 was selected as Naib‑Tehsildar candidate as a direct recruit on 10th April 1960 at No. 15. He was posted as Naib‑Tehsildar on 1st of June 1962, and passed the departmental examination on 15th March 1963.

Mr. Hakim Khan Baloch respondent No. 3 was selected in the same, selection on 10th April 1960 at No. 16 and was posted as Naib‑Tehsildar on 18‑6‑1962. He passed the departmental examination on 15th March 1963. Anwar Ali Cheema respondent No. 4 having been selected in a selection on 6th May 1960; a subsequent selection, must rank junior to the appellant under rule 9 (1) (a). He also passed departmental examination on 15^th March 1963. Mr. Muhammad Ashraf Qamar respondent No. 5 was selected as a Naib‑Tehsildar candidate (as A Class recruit) on 6‑5‑1960 in a subsequent selection. He must, therefore, rank junior to the appellant under rule 9 (1) (a).' He was posted as Naib‑Tehsildar on 5‑5‑1962 and passed the departmental examina tion on 15th March 1963.

Ch. Shahbaz Khan respondent No. 6 was selected as Naib‑Tehsildar directly (A Class) and was placed at No. 12 in the order of merit. The appellant being senior to him at No. 5 in the same selection must rank senior to him under rule 9 (1) (a). Respondent No. 6 was posted as Naib‑Tehsildar on 4‑6‑1962 and passed the departmental examination on 28th March 1964.

Mian Ahmad Mansoor respondent No. 7 was also selected as direct recruit (A Class) on 10‑4‑60. As he was at No. 13 in the order of merit, he must rank junior to the appellant who ranks at No. 5. He was posted as Nab Tehsildar on 5‑6‑1962. He passed the departmental examination on 28th March 1964.

Mr. Gondal respondent No. 8 was selected directly (as A Class) candidate on 6‑5‑1960 at No. 1. This being a later selection, the appellant ranks senior to him having been selected on 10‑4‑1960. He was posted as Naib Tehsildar on 10‑5‑1962 and passed the departmental examination on 28th March 1964.

Mr. Abdul Rashid respondent No. 9 was selected as A Class direct recruit in a selection held on 29th July 1960, and having been selected in a later selection must rank junior to the appellant, who was selected on 10‑4‑1960. He was posted as Naib‑Tehsildar on 21‑6‑1962 and passed the departmental examination on 28th March 1964.

Mr: Bashir Ahmad Khalid respondent No. 10 who was selected as Naib-Tehsildar candidate directly (A Class) on 15‑4‑1961, must rank junior to the appellant, who was selected on 10.4‑1960. He was posted as Naib‑Tehsildar on 1‑12‑1962 and passed the departmental examination on 28th March 1964.

Mr. Shaukat Ali, respondent No. 11 was selected as a direct recruit (A Class) on 10‑4‑1960. Having been placed at No. 8 in the order of merit, he must rank junior to the appellant, who in that selection ranked at No. 5. He was posted as Naib -Tehsildar on 25-7‑1962 and passed the departmental examination on 30‑1‑1965.

Mr. Bashir Ahmad Kamlana a respondent No. 12 was also selected in the selection made on 10‑4‑1960. Having been placed at No. 8 in the order of merit, he must rank junior to the appellant, who in that selection ranked at No. 5. He was posted as Naib- Tehsildar on 5‑6‑1962 and passed the departmental examination on 30‑1‑1965. Mr. Shafiq Ahmad Shah respondent No. 13 was also selected in the selection made on 10.4‑1960 as direct (A Class) candidate and placed at serial No. 14 in the order of merit. He must, therefore, rank junior to the appellant, who was at serial No. 5 in the order of merit. He was posted as Naib‑Tehsildar on 21‑6‑1962 and he passed the departmental examination on 30‑1‑1965.

Sh. Muhammad Manzoor Ahmad respondent No. 14 was selected as a direct (A Class) candidate on 6‑5‑1960 and having been selected in a lacer selection than the appellant must rant: junior to him. He was posted as Naib-Tehsildar on 20‑9‑1962, and he passed the departmental examination on 30‑1‑1965.

Raja Muhammad Iqbal respondent No. 15 having been selected as (A Class) candidate on 15‑4‑1961, i.e. a later selection, the appellant must rank senior to him under rule 6 (1) (a). He was posted as Naib‑Tehsildar on 12‑6‑1963, and passed the departmental examination on 30‑1‑1965.

Mr. Munir Ahmad respondent No. 16 was selected as direct (A Class) candidate on 15‑4‑1961. This was a subsequent selection than the selection of the appellant. He therefore, must rank junior to the appellant under rule 9 (1) (a). He was posted as Naib‑Tehsildar on 10‑6‑1963. He passed departmental exa mination on 30‑1‑1965.

Rana Farooq Ahmad respondent No. 17 having been selected as A Class candidate on 10‑5‑1961, a later selection, he must rank junior to the appellant, who was selected on 10‑4‑1960. He was posted as Naib‑Tehsildar on 12‑6‑1952. He took over at Shorkot, i.e., in the Sargodha Division on 10‑6‑1353. His name does not figure in Appendix VI of 1962, may be because he was selected at Quetta and his appointment was not invali dated by the High Court. He passed the departmental examination on 30th January 1965.

In this case, the West Pakistan Tehsildari and Naib‑Tehsildari Service Rules, 1962 were made applicable to the parties in 1967, by which time the appellant had been appointed as Naib- Tehsildar and had completed his departmental training Rule 8 of these rules could not be utilized in 1967 to invalidate his appointment as Naib‑Tehsildar or to urge that he had not become a member of the service, as no retrospective effect could be given to rule 8 to invalidate appointments already made. In this case, the appointments made much earlier than tae application of the rules to the parties must be deemed to have been validly made and the parties cannot be held to be not members of the service.

There is no warrant in law for fixing seniority of the parties according to the dates of passing the departmental examination. This is not provided for in rule 9: That rule must have full effect irrespective of the fact when the examination is passed, as condition of passing the examination is not a condition of seniority under it.

We have discussed in detail the legal position about the "interpretation of rule 8 in Case No. 531/229 of 1970 of Ch. Shaukat Ali v. Commissioner, Sargodha etc. We have held that rule 9. will determine seniority of the members of the Naib -Tehsildari Service, and the date of pausing the departmental examination is not material for this purpose.

It may, however, be pointed out that respondents have objected to the induction of the appellant in Sargodba Division. It has been contended that Sargodha Division was created in December 1960. Options were called for allocation of Naib- Tehsildars for transfer to the newly‑created division by the Commissioner, Multan Division. The appellant did not opt for Sargodha Division but for Multan Division on 24‑12‑68. Thus it is a transfer at his own request. According to Government instructions, if a person gets himself transferred to a different cadre, then he is liable to be placed Junior most in the new cadre. It was also stated that a representation to this effect is pending with the authority. Mr. Sarwar Hayat Khan has also submitted written arguments that his name should appear on the list of Multan Division and whenever an occasion arises, he may be called and promoted according to the seniority list of Multan Division. However, the competent authority may decide about his allocation to Multan Division or Sargodha Division. His seniority in the cadre of Naib‑Tehsildars may be fixed after a decision about his allocation has been finally taken. In this case, we are only deciding that the date of passing the depart mental examination is not material for the purpose of fixing the seniority of the appellant. The appeal is decided accordingly with no order as to cost.

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