Find a Lawyer

Case No. 31 of 1974, decided on 14th October 1974.

‑‑ R. 8‑Seniority‑Persons appointed prior to integration‑Governing factor‑Date of confirmation‑Confirmation refused on account of unsatisfactory record of service‑Contention that appellant being appointee of date earlier than respondents should have been confirmed, in circumstances, rejected and claim of seniority, held, misconceived.

‑‑ r. 8 and West Pakistan Education Department Subordinate Regional Service (Administrative Branch) Men's Section Rules, 1962 and integration Circular No. 871 ‑ Integ‑55/4471 dated 25‑11‑1955, para. 17 ‑ Seniority ‑ Group "A" (appointees of dates prior to Integration) and Group "B" (appointees of Post Integration period but prior to promulgation of 1962 Rules)‑Seniority inter se of group "A" to be determined by r. 8 of Punjab Subordinate Education Service Rules, 1937 and inter se of group "B" under para. 17, Integration Circular dated 25‑I1‑1955‑Rules 1962 prospective and not retrospec tive in operation hence not applicable for inter se seniority of group "B"‑Seniority inter se of groups "A" and "B" neither governed by any rule nor any guidance available in integration circular‑Equit able rule of continuous officiation in grade, held, should apply subject to condition that inter‑seniority within each of two groups determined on basis of respective rules not to be disturbed.

This is an appeal under section 4 of the Punjab Administrative Tribunals Act, 1974 by which Mr. Barkat Ali Khan, Physical Trg. Instructor in the Government Middle School Chak No. 36 N. E. Northern, Sargodha, impugned the fixation of his seniority in the Provisional seniority list of the School Administration General Cadre Part III as it stood on 1‑10‑72. The appellant also feels aggrieved of the departmental orders dated 19‑3‑73 by which the respondents have been granted selection grade and confirmed in that grade from dates earlier than the appellant.

The appellant prays that the impugned seniority list as on 1‑10‑72 be set aside and that he be shown senior to the respondents. He also prays that the Director of Edu. Rawalpindi Division respondent No. 4, be directed to place the appellant on probation for one year from 3‑3‑1955 and to confirm the appellant as P. T. I. in the S. E. S. Vernacular and Classical Teachers Cadre ordinary scale w.e f. 3‑3‑1956. As consequential relief the order dated 19‑3‑73 regarding grant of selection grade/confirmation is also requested to be set aside and it is prayed that direction may be given to respondents 3 and 4 to assign 14‑4‑1968 as the date of promotion/confirma tion in the selection grade to the appellant, instead of 1‑9‑1969 which is that date presently assigned to him.

Mr. Barkat Ali Khan appellant was appointed as P. T. I. Government High School, Mianwali by order dated 28th February 1955, issued by the Director of Public Instruction. His appointment was to be made effective from his date of joining which came about on 3‑3‑1955. Respondents 5 to 16 and 69 to 72 were, like the appellant, recruited to posts in the School Administration General Cadre (Men's Branch) on various dates prior to the date of Integration i.e. 14‑10‑1955. The rule of seniority of the appellant vis‑a‑vis these respondents is rule 8 of the Punjab Subordinate Educational Service Rules, 1937 which reads as under

"The seniority of members in the various grades of the service shall be determined by the date of confirmation, which for the purpose of this rule shall be the day following the expiry of the period of probation. Provided that if two or more members are confirmed in the same class of posts on the same date, their seniority shall be determined by the Director whose decision shall be final.

Thus the seniority Inter se of the appellant and these respondents was to be determined by their dates of confirmation. In his reply the Secretary to the Government of the Punjab Education Department respondent No. 1 has expressly stated that the appellant was duly considered alongwith others for confirmation but that his confirmation was post‑dated to 3‑3‑1959 because of his service record not being satisfactory for the years 1955 to 56 and 1957. As such, we hold that the seniority of the appellant and the respondents 5 to 16 and 69 to 72 is to be determined by their dates of confirmation and that there is no force in the appellants contention that he should have been confirmed from an earlier date.

The other category of respondents consists of persons who were recruited and confirmed after 14‑10‑1955 which is the date of the Integration of the Provinces of West Pakistan into One Unit.

The West Pakistan Education Department Subordinate Regional Service (A6ministrative Branch) (Men's Section) Rules, 1962, were promulgated on 11‑10‑1962. Rule 10 of the Rules provides the rules of seniority but these rules should be prospective and not retrospective in their application and effect. On the other hand, both the appellant and the second group of respondents 17 to 68 and 73 to 89 were appointed and confirmed before coming into force of these rules. As such, these rules are not available to us for the determination of seniority among themselves of the afore‑mentioned respondents. In such cases, the seniority inter se of these respondents is to be determined by para. 17 of the Integration Circular of 25‑11‑1955 which reads as under:

"After the integration, the seniority of new entrants to the services will be determined in accordance with the following formula: (a) the seniority inter se of the direct recruits will be determined on merit on the basis of the competitive examination, or, where there is no such examination, by the order of merit determined by the Public Service Commission or, in other cases, the appointing authority. Where direct recruits after appointment are trained at a training institution, the seniority will be determined on the above basis taken together with the result of the examination held on completion of the training; (b) the seniority inter se of promoted officers will be determined with reference to the dates of their substantive appoint ment in the quota reserved for promotion. If the promotion of two officers takes effect from the same date, their seniority will be deter mined in the order of merit assigned to them by the P. S. C. In case two officers are bracketed together in the order of merit, and their appointment also takes effect from the same date, the older officer will be given seniority over the other; (c) the seniority of direct recuits vis‑a‑vis promoted officers will be regulated with reference to their respective dates of appointment to the service. 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."

Whereas the first group of respondents 5 to 16 and 69 to 72 are in the category of those appointed before, but confirmed after the date of Integration (to which the appellant also belongs) the other set of respondents 17 to 62 and 79 to 89 belongs to the category of persons recruited and confirmed after the date of integration. While the inter se seniority of the fist group of respondents and the appellant is to be determined under rule 8 of the 1937 Rules, the inter se seniority of the latter group is to be fixed according to para. 17(a) of the integration Circular. The question arises how are these two sets of officers to be brought on a common seniority list. Neither the Integration Circular of 1955, nor the Rules of 1962 give us any guidance on this point. Therefore, we have to look elsewhere for an equitable basis for the determination of their relative seniority in a common seniority list. In such circumstances we are guided by the natural and equitable rules of seniority laid down by the Supreme Court in the case of Khushi Muhammad Railway Guard, namely the rule of continuous officiation in the grade as the determining factor of seniority. Thus the relative seniority of the appellant and the two categories of respondents cited above is to be determined by the said rule of continuous officiation. However, in doing so the inter se seniority of the two groups of res pondents and the appellant determined under the 1937 Rules in the case of former and pats. 17(a) of the Integration Circular in the case of the latter group is not to be disturbed. In the result we direct that the seniority list be revised in the light of the above findings. There will be no order as to costs.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.