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Case No. 538/1987 of 1982, decided on 25th October, 1983.

‑‑ Rr . 8 & 9‑Departmental examination ‑ Seniority ‑ Rule 8 containing requirement of completion of departmental examination sit within four attempts‑Mandatory ‑ Competent authority cannot relax same by taking a lenient view and in normal course should remove a Tehsildar failing to clear, examination within four attempts‑Tehsildar not allowed to avail a chance on plea that he 414, had not yet completed 6 months' service‑Such chance could not be treated as lapsed chance and thus clearing his examination in 5th examination held after his appointment would be considered as his 4th attempt‑Incident of clearance of examination, held, has no effect on seniority and same determinable on basis of order of merit assigned in order of appointment.

1971 P L C (C. S. T.) 271 and 1971 P L C (C. S. T.) 253 rel,

‑‑ S. 4‑Precedent ‑Judgments of previous Tribunal (Punjab Service Appellate Tribunal)‑Have guiding as well as binding force for Service Tribunal.

‑‑ S. 4‑Limitation for appeal before Tribunal‑Starts from final order‑Seniority list published in 1971‑Note recorded in such list that seniority of some officers including appellant would be fixed after inviting objections separately‑Appeal filed within 30 days of order passed on his representation informing him finally his position in seniority list, in circumstances, held, within time.

PLD1981 SC612rel‑

‑‑ S. 7(1) & (2) read with West Pakistan Tehsildari and Naib‑Tehsildari Service Rules, 1962, r. 9‑Provisions of Civil Servants Act, 1974‑Cannot be applied retrospectively‑Tehsildar appointed by direct recruitment ‑ Falls within ambit of S. 7(1) and not . S. 7(2)‑Appointment made in 1966‑Seniority would continue to be governed by r. 9 of Tehsildari and Naib Tehsildari Service Rules, 1962 on basis of order of merit assigned at time of appointment‑Promotions made in 1973 as E. A. C. ‑‑ Promotion of appellant not made at time of promoting his juniors due to misunderstanding and without considering his case ‑ Appellant, in circumstances, held, entitled to promotion alongwith his junior from same date and cannot be deprived of his inherent right bestowed upon him by law‑Punjab Service Tribunals Act (IX of 1974), S. 4.

‑‑ Discrimination‑Should not be made to detriment of a civil servant ‑ Discrimination ‑ Not only unjust but also leads to frustration.

Masud Ahmad Riaz for Appellant.

Syed Jamshed Ali for Respondents Nos. 7, 11, 15 and 16.

Syed Hassan Ali Shah District Attorney for the Government.

‑Y Muhammad Safdar Khan, E. A. C. has filed this appeal under section 4 of the Punjab Service tribunals. Act, 1974 in which he has impleaded the Board of Revenue, Punjab, Lahore, Chief Secretary, Government of the Punjab, Lahore and Messrs Muhammad Khan Mobal, Nusrat Hayat Shah, G. M. Inayat, Muhammad Bakhsh Sipra, Ch. Shaukat Ali, Saleem Akhtar Shah, Ch. Muhammad Saeed, Saleem Sher Afghan Kayani, Shaukat Ali Malik, Ghulam Bari Akhtar, Muhammad Aslam Khan, Altaf Hussain, Shamsher Ali Khan, Mahmood Ahmad Khan, Fayyaz Ahmad Khan. Ch. Abdul Ghani and Shahbaz Khan as respondents.

2. By virtue of this appeal the appellant has prayed that respondents 1 and 2 may be directed to promote/consider the appellant for promotion as Tehsildar from 11th July, 1973 and respondents Nos. 3 to 19 be declared junior to the appellant.

3. Brief facts of the case are that the appellant was selected by the Board of Revenue. West Pakistan as a candidate for direct appointment alongwith the contesting respondents Nos. 3, 4, 7, 11 and 14 (hereinafter stated as 'A' class respondents), vide order, dated 13th September, 1966. The appointment letter also contained one of the terms that inter se seniority of the candidates would be such as fixed in the Seniority List issued alongwith the aforesaid appointment letter. In the said seniority list/order of merit the appellant was shown at Serial No. 12 whereas the Class respondents were shown below him at Serial Nos. 13 to 23. In this manner the appellant claimed to be senior. As laid down under the rules, the appellant and A class respondents were sent for training and were required to pass the Departmental Tehsildari Examination as provided in Tehsildari and Naib‑Tehsildari Service Rules. The appellant reported to the Settlement Officer, Sheikhupura, on 1st December, 1966 for the said purpose. The first, Departmental Examination was held in 1967 but the appellant was not allowed to sit in the same as he was told by the Settlement Officer, Sheikhupura, that only those candidates were eligible to take Departmental Examination who had on the date of examination, completed six months training. As the training period of the appellant was less than six months at that time, he was not considered eligible to take the said Examination. However, the appellant offered himself for the examination which was later on held and with the exception of Patwar Mansuration Paper, the appellant cleared all the subjects and this paper was also cleared by him in March, 1969. On 22nd April, 1969 a notice was issued to the appellant and Mr. Khair Muhammad Tiwana as to why their names should not be removed from the list of Tehsildari candidates as they had not cleared the Tehsildari Examination in four attempts. The appellant submitted his explanation and explained the circumstances under which he was forced to clear the Patwar Mensuration Paper in 1969. However, the appellant continued in service and his seniority was disturbed on account of his clearing the Patwar Mensuration Paper in 1969, which according to the respondents was a 5th attempt which was not permissible under the Rules. In. view of the above the respondents placed the appellant junior to Messrs Nusrat Hussain Shah and others respondents, viz. 4, 9, 11, 14, 15, 16 and 17, although they were positively junior to the appellant. The above respon dents were promoted as Extra‑Assistant Commissioners, vide Services, General Administration and Information Department's Notification, dated 11th July, 1973. The case of the appellant was not considered due to the incident, a mention of which has been made in the earlier part of our judgment. The appellant was however promoted as Extra‑Assistant Commissioner, on 1st August, 1978 i.e. 5 years later than A' Class respondents. Respondent No. 1 issued a seniority list on 2nd July, 1971 which was declared as tentative and in that list the name of the appellant and the contesting respondents appeared between Serial Nos. 334 to 351. Although the name of the appellant appeared at Serial No. 351 but no date of continuous appointment in the grade was shown against his name. The appellant made a representation, on 20th February, 1981 and 14th September, 1982 which has been rejected vide letter, dated 16th October, 1982. Hence this appeal.

4. We have heared the learned counsel for the appellant as well as learned counsel for the contesting respondents and learned District Attorney appearing on behalf of Government and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the crucial issue in this case would be whether the appellant was in any manner guilty of lapse by taking the Patwar Mansuration Paper in 5th attempt or not. The second point which would be the corollary of this issue is whether the said attempt which has been called the 5th attempt was in fact 4th attempt as permissible under the rules was one's beyond. According to the learned counsel, in case it is held by the Tribunal that the attempt by which the appellant cleared Patwar Mensuration Paper was 4th attempt duly admissible under the rules the case of the appellant becomes a justified case for seniority as by no rhyme and reason he can be deprived of the same. Learned counsel for the appellant has further submitted that even if it is held that the attempt by which the appellant cleared his Patwar Mensuration Paper was an attempt not permissible under the Rules, even then that cannot be made basis for his becoming junior to the contesting respondents as under the rules as well as under the law laid down, that if the appellant had not cleared his departmental examination than after four permissible attempts, he was liable to be removed from service straightway. According to learned counsel, the very fact that the appellant was allowed to continue to service, would clearly show that the 5th attempt by which tie cleared the Patwar Mensuration Paper, was not considered any lapse on his part. Learned counsel has relied on the decision of the Punjab Civil Services Appellate Tribunal reported as 1971 e L C (C S T) 271 and 1971 P L C (C S T) 253, wherein such like assumptions came before the Tribunal and the Tribunal gave an elaborate judgment by holding that the seniority should not be fixed by the incident of passing Departmental Examination but the sine quo non of the seniority in such matters, would be the position of the candidate assigned to him at the time of his selection .

6. On the other hand learned District Attorney has adopted the comments filed by respondent No. 2 through Syed Muhammad Hamid and has urged that respondent No. 2 was fully justified to hold the appellant junior as he had failed to clear the Tehsildari Examination in time and had availed extra chance in the year 1969. Except this argument nothing else bas been said in support of the action taken by the respon dents to declare the appellant as junior. However, in para. 11 of the comments it has been stated by the respondent that according to section 7(2) of the Punjab Civil Servants Act, 1974, seniority in the grade to which a civil servant is promoted, shall take effect from the date of regular appointment to a post in that grade.

7. Syed Jamshed Ali, Advocate, on behalf of contesting respondents Nos. 7, 11, 15 and 16, has raised the point of limitation in which he has stated that the appeal of the appellant is barred by time for a period of 10 years as he did not challenge the seniority list published in 1979. Rest of the points raised by the learned counsel for the respondents are repetition of the same points as given by the respondent No. 2 through the learned District Attorney.

8. We have given our anxious thought to the points raised by the parties and first of all resolve the crucial issue in this case whether the appellant failed to clear his departmental examination within the prescribed four attempts and his clearing the Patwar Mensuration Paper in the year 1969, would be considered a 5th attempt not permissible under the rules and what would be its legal effect. We have given our consideration to para. 2 of the appeal in which it has teen averred that the appellant failed to take his departmental examination in the first attempt which was available to him in the year 1967, on the ground that he was not allowed to do so by the Settlement Officer, Sheikhupura, on the plea that he had not yet completed 6 months. While going through the comments of the respondents we find that the respondent No. 2 has offered no comments on this controversy and left that issue to the Board of Revenue. For this purpose we have looked into the comments offered by the Board of Revenue and find that they do not deny the averment so made in para. 2 of the appeal about the important fact of his being refused to sit in the departmental examination under the verbal order of the Settlement Officer, Sheikhupura at the relevant time. Thus, by passing the crucial averment on behalf of both the respondent No. 2 and Board of Revenue, the logical conclusion would be that they had accepted the claim of the appellant as correct. The stand taken by both these respondents on this issue is that as the appellant had positively failed to clear the departmental examination within four attempts, there fore, he was considered junior to the contesting respondents and it was only an act of leniency on their part to allow him to take the said examination in the year 1969.

9. We are afraid that this sort of stand taken by the respondents in no way supports their cause and does not help them much to defend the claim of the appellant. Rule 8 of the Tehsildari Rules is mandatory in nature and lays down that the Tehsildar so selected shall have to complete his departmental examination within four attempts. It nowhere permits the competent authority to relax the rules by taking a lenient view of the situation and the normal course would be to tell the Tehsildar in black and white that he had to leave the service as he had failed to comply with the mandatory provision of rule 8. The mere fact that the appellant was allowed to continue in service and was also permitted to avail the chance in the year 1969, ostensibly beyond four prescribed attempts, would pursuade us to accept the arguments of the learned counsel for the appellant that in fact, the permission to take 5th chance was due to the fact that the appellant had not been allowed to take first chance in the year 1967, therefore, his 5th chance in fact is 4th chance, according to the peculiar facts of his case. The second question in this case is what would be the yard stick for the seniority of a particular person vis‑a‑vis to clear his departmental examination. In this connec tion, we are guided by two judgments of the Punjab Civil Service Appellate Tribunal headed by late Justice S. A. Mahmood, cited as 1971 P L C (C .S T) 271 and 1971 P L C (C S T) 253. It was held as under :‑----

"The view taken that seniority can only be counted from the date of passing the departmental examination clearly contravenes the principles on which seniority is to be determined under rule 9 and its express provisions. Seniority must be determined in accordance with rule 9 and no other consideration can be allowed to over ride its clear meaning. In this respect rule 9 can override rule 8 but not vice versa. Thus, in the case of direct recruit seniority must be determined under clause (1) of rule 9 in accordance with the order of merit assigned by the Commissioner in the case of Naib‑Tehsildars and person selected in an earlier selection shall rank senior to the persons selected in later selection whatever be the date of passing the departmental examination, this rule must be given effect to and seniority determined in accordance with the order of merit assigned by the Commissioner. If the rule so provides, as it does, neither the Commissioner nor the Board of Revenue has powers to provide anything to the contrary. In order to make a different provision, the rule must be altered, but so long as the rule remains as it is, it will have to be followed. On the basis of this rule, the order of merit assigned by the Commis sioner must prevail in the case of A' Class recruits, and as the appellant was placed at No. 8 in order of merit, he must be deemed to be senior to the respondents directly recruited on 10th April, 1960 and placed below him and respondents Nos. 9, 10. 11, 14 and 15, who were selected as 'A' Class candidates in subsequent selections." (1971 P L C (C. S. T.) 271)

10. While taking guidance from this judgment of the predecessor Tribunal we have no hesitation to hold that the present case of the appellant which is also governed by rules 8 and 9 is fully within the ambit of this judgment as in the case of Tehsildan candidates, these very rules are applicable. The only difference would be that in the case of Naib‑Tebsildar the appointing authority is Commissioner whereas in the case of Tehsildar the appointing authority is Board of Revenue. This being the law laid down which has got guiding as well as binding force for us in view of W. C. Austin case decided by the Supreme Court o if Pakistan. We cannot take any other view but the one so held by the said Appellate Service Tribunal.

11. In view of the law laid down the appellant cannot be assigned seniority keeping in view the date of clearing the departmental examina tion which of course is later than the contesting respondents as he would be considered senior to them in accordance with the order of merit so assigned to him in the order of appointment dated 13th September, 1966 and the list governing the said order.

12. With regard to the objection that the appeal is hopelessly time barred by 10 years so raised by Syed Jamshed Ali learned counsel for the respondents, we have carefully looked into the record of this case that the list of 1971 contains a note at No. 4 as under :‑

"Final seniority list in respect of officers from Serial No. 321 onwards will be fixed, after, inviting objections, separately."

As the name of the appellant fell within this category, therefore, he made representation for fixing the seniority and it was only in the year 1982, that he was finally told that as he had failed to clear the examination in time and as his appointment to the post of E. A. C. was made in the year 1978, which was governed under section 7(2) of the Punjab Civil Servants Act, 1974, therefore, he would get his seniority from the date of induction of the said grade. In view of this final rejection the appellant would be entitled to file his appeal within 30 days of the said refusal of his claim. We have satisfied ourselves that the appeal was filed within 30 days of the said final answer of his representation. We are fortified in our view by the law laid down by the Supreme Court of Pakistan in case P L D 1981 S C 612 wherein it has been held that time limit would start running from the date of passing of final order and not from the date of original order.

13. With regard to the stand taken by Syed Jamshed Ali as well as Syed Muhammad Hamid on behalf of respondent No. 2 that the case of the appellant was to be governed under section 7(2) of the Punjab Civil Servants Act, 1974, it would be sufficient to say that the case of the appellant would be governed under rule 8 of Tehsildari and Naib Tehsildari Service Rules, 1962 and not section 7(2) of the Punjab Civil Servants Act, 1974. The reasons being that the Act of 1974, cannot be applied retrospectively and that the case of the appellant being the case of direct recruitment, would fall within the ambit of section 7(1) and not section 7(2) of the Punjab Civil Servants Act, 1974 we, therefore, have no hesitation to repel the arguments advanced both by the learned counsel for the respondents as well as respondent No. 2 through Syed Muhammad Hamid. In the case of the appellant what we find is that he was appointed directly to the post of Tehsildar in the year 1966 and was assigned a definite seniority vis‑a‑vis some of the 'A' Class contesting respondents, the mere fact that his promotion was deferred due to some misunderstand ing of law as well as facts of the case, would not make him junior to those who have been promoted earlier to him due to said misunderstanding.' The appellant would be entitled to claim his seniority at the time of his promotion from the date his juniors were promoted in the year 1973, parti cularly when the appellant did not stand superseded. As we have held in the earlier part of our judgment that the appellant did avail only four chances for clearing his departmental examination and the department was wrong in holding that the chance availed by the appellant in the year 1969, was in fact a 5th chance, we have no hesitation to strike down the illegal assumption of the respondents that the appellant had in any manner violated the Rules so prescribed for the purpose. This being so the appellant was entitled to the promotion in the year 1973 as E. A. C. when his juniors were so promoted and would certainly carry his seniority with him at the time of his belated promotion which has occurred due to no fault of the appel lant. We cannot allow to deprive a civil servant of his inherent right which has been bestowed upon him by law.

14. Before parting with this case we will like to make observation in the light of the case of Khair Muhammad Tiwana which has been cited by the appellant as a precedent of discrimination. In the said case we find that the case of Khair Muhammad Tiwana was absolutely identical in nature with the case of the appellant but the Government, for reasons best known to them, has taken a favourable view in his favour while the same has not been given to the appellant. The Supreme Court of Pakistan in many of its judgments have held that no discrimination should be made to the detriment of a civil servant as such like acts are both unjust and lead to frustration.

15. In view of the above, the result is we accept the appeal, set aside the impugned seniority list, dated 2nd July, 1971 and final order, dated 16th October, 1982 and declare that the appellant would be deemed to be senior both as Tehsildar as well as E. A. C. against the contesting respondents. We further direct that the case of the appellant be taken up for pro forma promotion as E. A. C. from 11th July, 1973 the date from which his next junior was so promoted. There will be no order as to costs.

A. E. Appeal accepted.

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