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Civil Petition for Special Leave to Appeal No. 97‑P of 1973, decided on 14^th December 1973.

(On appeal from the judgment and order of the Peshawar High Court, dated the 18^th of September 1973 in W. P. No. 8 of 1973).

---‑S. 8‑Civil service‑Seniority‑Question of seniority between pro motees and direct recruits‑Tribunal acting under N ‑W. F. P. Civil Services (Appellate Tribunals) Ordinance, 1971, directing that "Govern ment would be well advised to prepare seniority list afresh"‑Held Tribunal, in circumstance, had jurisdiction to hold the seniority list to ; be incorrect and direct that fresh seniority list be prepared.

Khushi Muhammad's case P L D 1970 S C 302 ref.

Abid Hassan Minto, Advocate Supreme Court instructed by Amirzada Khan, Advocate‑ on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 14th December 1973.

The dispute between the parties is over seniority between the promotees and the direct recruits. The petitioners are promotees and they have been aggrieved by the order of the N.‑W. F. P. Civil Services Appellate Tribunal (respondent No. 1 herein) dated the 16th of October 1972 passed on the appeal filed by the direct recruits respondents Nos. 3 to 5. The Tribunal was of the view that the seniority of the direct recruits vis‑a‑vis the Promoted officers was to be determined on the basis of their respective dates of appointment against substantive posts, namely, the dates of their confirmation. It held that the seniority list as contained in the Notifications dated the 1st of May 1970 and the 30th of June 1970 was incorrect and accordingly allowed the appeal of the said respondents, and observed that the Government would be well advised to prepare the seniority list afresh with reference to the permanent strength of the cadre before the year 1968, namely, on the strength of 59.

The present petition for special leave to appeal is from the order of a Division Bench of the Peshawar High Court dismissing the writ petition of the petitioners from the said order of the Tribunal. The High Court held that the conclusion of the Tribunal was correct.

Mr. Abid Hassan Minto, learned Advocate appearing on behalf of the petitioners, has contended before us that the Tribunal has exceeded it jurisdiction in asking the Government to prepare the seniority list afresh. With reference to section 8 of the North‑West Frontier Province Civil Services (Appellate Tribunals) Ordinance, 1971, he has argued that it was only in a case where no seniority list existed that the Tribunal could ask the Government to prepare the requisite seniority list. This contention appears to us to be misconceived inasmuch as the Tribunal has not done the thing attributed to it. The Tribunal found that the seniority list as contained in the aforesaid two Notifications dated the 1st of May 1970 and the 30th of June 1970 was incorrect and this the Tribunal had the jurisdiction to do. The result of this finding was that of necessity the seniority list required to be corrected, and in this context the Tribunal merely observed that the Government would be well advised to prepare the seniority list afresh.

The learned counsel bas next challenged the validity of the impugned order of the Tribunal on the ground that its effect was to disturb the confirmation of the entire cadre and not only that of the four direct recruits who preferred the appeal. We do not think there is any substance in this contention, for if the order is legal but as a result of it a situation has arisen whereby the seniority list is required to be corrected and the consequent benefit of the correction is extended to persons who did not appeal, the validity of the order is not affected thereby.

Lastly, it has been contended that the decision in the case of Khushi Muhammad reported in P L D 19 0 S C 203 applied to the facts of the case, and that the learned Judges of the High Court wrongly distinguished the facts of the case on the ground that in the case under report, there did not exist any rule regarding the particular method of determining seniority as rule 9(2)(b) of the West Pakistan Civil Services (Executive Branch) Rules, 1964 in the present case. In answer to this contention it may be stated, in the first place, that the High Court held that at the time when the direct recruits joined the service and the petitioners were promoted Integration Circular of 1955 governed their case. Paragraph 17(c) of the Integration Circular prescribed as follows:‑

"The seniority of direct recruits vie‑a‑vie promoted officers will be regulated with reference to their respective dates of appointment to the services. This date in the case of direct recruits will be the date of appointment on probation or otherwise. In the case of promoted officers, it will be the date of substantive appointment."

It was pointed out that none of the two Notifications dated the 1st of May 1970 and the 30th of June 1970 mentioned the date when the promotees were appointed in the substantive appointments. The High Court further proceeded to observe that even if it was held that the West Pakistan Civil Services (Executive Branch) Rules, 1964, had superseded the said Integration Circular, rule 9(2)(b) of the said Rules would apply in the present case inasmuch as in the year 1964 all the vacancies that exceeded 59, which was the sanctioned strength of the cadre of Group "D" in 1962, were temporary. This meant that the petitioners were then officiating against temporary vacancies, while the direct recruits (respondents Nos. 2 to 5) were officiating against substantive vacancies, and the latter would, therefore, rank senior to the former. In the second place the High Court was right that the case under report did not apply to the present case.

In any event we do not think that any injustice has been occasioned by the impugned order of the Tribunal inasmuch as the Government will now consider the question of seniority between the parties concerned, and there is no reason to believe that any party will be unjustly dealt with.

The petition is accordingly dismissed.

Leave refused.

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