Find a Lawyer

Case No. 115/961 and 116/960 of 1977, decided on 18th May, 1982.

---- R. 15 (2)‑Explanations 1, II and III & r. 15 (4) ‑ Seniority on promotion as Officiating Executive Engineers‑Assistant Engineers Class I Junior recruited through Public Service Commission qua Temporary Engineers inducted to Class I by upgradation w. e. f. 22nd July, 1971‑Contention that upgradation of status of Tempo rary Engineers to Class I Junior w. e. f. 22nd July, 1971 does not amount to their regular promotion to class I Junior‑Rejected Held: No difference between raising of status to Class I Junior and promotion to that status‑Temporary Engineer finding place junior to Assistant Engineer in Class I Junior seniority list promoted earlier as Officiating Engineer without superseding his senior‑Assis tant Engineer on subsequent promotion as Officiating Engineer, held, would maintain his seniority qua Temporary Engineer junior in Class I Junior Seniority though promoted earlier‑ Case, held, governed by r. 15 (2) and not by r. 15 (4) which is applicable only for fixation of seniority of those appointed by initial recruitment vis‑a‑vis promotees in same grade.

Masud Ahmad Riaz for Appellants.

Haroon‑ur‑Rashid Cheema District Attorney for Respondents.

‑Ehsanullah Sardar and Tabir Ahmad Malik have filed these two Appeals Nos. 115 of 1977 and 116 of 1977 respectively under section 4 of the Punjab Service Tribunals Act of 1974. The appellants have impleaded Secretary to the Government of the Punjab, Irrigation Department, and various others as per list at Annexure A' as respondents.

2. By virtue of these appeals the appellants have prayed that the respondent No. 1 be directed to declare the appellants senior to the contes ting respondents as Officiating Executive Engineers as well as Assistant Executive Engineers. It has been further submitted that the seniority list of Officiating Executive Engineers as it stood on 14th October, 1972 and notified on the same date and amended on 19th August, 1975 in so far it has fixed the seniority of the appellants viz. the contesting respondents be declared as illegal.

3. Brief facts of the case are that 20 permanent posts of Assistant Executive Engineers in W. P. S. E. Class‑I Junior were available with the former West Pakistan Government for filling by direct recruitment. These were advertised by the Government through Public Service Commission and in 1968 the West Pakistan Public Service Commission interviewed about 700 candidates including most of the respondents. Out of 700 candi dates 20 candidates including the appellants were declared fit by the Com mission on merits and were recommended for appointment to the post of Assistant Executive Engineers. Out of above lot 12 including appellants were direct recruits whereas 8 were departmental candidates. The appel lant Tahir Ahmad Malik was placed in order of merits at Sr. No. 1 and Ehsanullah Sardar at Serial No. 3. Two appellants were put on probation and became regular members of W. P. S. E. Class‑I through Appointment Order, dated 21st October, 1979.

4. The respondent No. 1 issued seniority list of the members of Class‑I Service in Engineering (Irrigation) Punjab as it stood on 1st December, 1971. The names of the appellants were shown at Sr. No. 50 and 52 respectively. At that time none of the respondents had been induc ted into Class‑I.

5. The respondents Nos. 2 to 60 joined the service in the department as Temporary Engineers subsequently they were also inducted into Class‑I Junior w. e. f. 22nd July, 1971 through a general notification by which Class‑I status was bestowed by the Government of Punjab upon all Graduate Engineers of the Engineering Department.

6. The respondents were promoted as Officiating Executive Engineers in Class-I (Senior) from earlier dates than the appellants who were so promoted on 1st August, 1972. The respondent No. 1 issued another seniority list of Assistant Executive Engineers of the P. S. E. Class‑I Irrigation and Power Department as it stood on 14th October, 1972 in which the names of the appellants were omitted. The appellants, therefore, were unaware of their status with regard to this seniority list. It was again in 1972 another list of Officiating Executive Engineers was issued in which the appellants were shown juniors to the respondents. As this list was self -contradictory whereas number of officers with later date of appointment as Officiating Executive Engineers have been shown seniors to those with earlier dates of appointment as Officiating Executive Engineers, the appellants due to this confusion made a representation against this inequity and injustice. The appellants first of all made various representations to respondent No. 1 and ultimately they filed an Appeal No. 19 of 1973 before the former Punjab Service Appellate Tribunals to which they prayed that the respondent be directed to publish a complete seniority list of Assistant Executive Engineers to enable the appellants to know their exact seniority position in Class‑I Junior and that the respondent No. 1 be directed to revise the seniority list of Officiating Executive Engineers with reference to their seniority in lower grade that is Assistant Executive Engineers as the said list deprived the appellants of their lawful rights of seniority. The department representative appeared before the Tribunal but could not controvert the stand of the appellants, therefore, learned Tribunal passed a judgment on 22nd May, 1973 directing the respondent No. 1 to the effect that complete seniority list of Assistant Executive Engineers of Class‑I Junior be published by showing the appellants' names therein at the appro priate place.

7. As the said seniority list was not published in accordance with the order of the Service Tribunal the appellants asked for implementation of the same through application, dated 15th November, 1970 report was called for on 5th January, 1977. The respondent No. 1 was directed to submit a seniority list of that date. He was given another opportunity to submit the list by 27th May, 1977 which was at last submitted. As the basic seniority of the appellants stood restored vide the said seniority list the appellants agitated to respondent No. 1 to give them their due seniority in the aforesaid seniority list of Officiating Executive Engineers as well. As the claim of the appellants was not conceded the appellants filed this appeal on 1st June, 1977.

8. It is unfortunate that this appeal has been pending with this Tribunal for full five years for one reason or other and now has come before us ultimately for adjudication. Meanwhile we also find that the respondents have issued a seniority list, dated 16th February, 1981 in which the same position viz. appellants has been taken and they have been shown junior to the contesting respondents.

9. We have heard the learned counsel for the appellants as well as the learned Messrs Aitzaz Ahsan and Khawaja Muhammad Akram, learned counsel for the contesting respondents and have perused the record of this case carefully with their assistance.

10. The learned counsel for the appellant has argued that according to the law settled and rules in this behalf a person who is senior in the lower grade would be entitled to retain his seniority in the higher grade unless and until he was, superseded. According to learned counsel since the appellants are undisputed seniors to all the respondents as Assistant Executive Engineers in Class‑I Junior, they would rank senior to all the contesting respondents in Class‑1 (Sr) as they have not been superseded by them in any manner whatsoever. The learned counsel for the appellant has further assailed the impugned seniority list of 1972 of Officiating Executive Engineers as well as the seniority list of 1982 of the same class by submitting that these lists are self‑contradictory and are against the stand taken by respondent No. 1 in para-wise comments where it has been asserted that these lists have been formulated only on the basis of the date of continuous/officiating appointment of the respondents as Executive Engineers, which in the case of contesting respondents being earlier than the dates of such officiating appointment of the appellants, the former are senior to the latter. He has demonstrated this point by pointing out that the date of appointment as Officiating Executive Engineers all officers at Sr. Nos. 8 to 18 in the final seniority list dated 16th February, 1982 ranged between 8th November, 1961 and 1 5th June, 1963 yet they have been placed junior to the Officer at Serial No. 7 whose date of appointment as officiating Executive Engineer is 4th August, 1964. Similarly Officer at Serial No. 12 who was appointed as such w. e. f. 18th May. 1962 has been shown senior to Officer at Serial No. 13 of the same list so that the latter's date of appointment is 12th October, 1961. The learned counsel has also quoted further similar instances as well which need not be reproduced.

11. The learned counsel has further argued that this very issue came up for decision before Punjab Civil Service Appellate Tribunal in 1973 in four Appeals Nos. 20/20, 52/19 53/17 and 5418 of 1973 wherein Messrs Naeem Akhtar Khawaja, Maqsood Ahmad Malik, Mazhar Hussain Syed and Abbass Raza were appellants and most of the contesting respondents figured as respondents. It has been pointed out by the learned counsel for the appellant that the Punjab Civil Services (Appellate) Tribunal has given clear cut verdict on this issue by holding that appellants being senior in lower grade as Assistant Executive Engineer Class‑I (Junior) would be deemed to be senior as Officiating Executive Engineer, irrespective of their dates of promotion to such posts.

12. On the other hand the learned counsel for respondents Messrs Aitzaz Ahsan and Khawaja Muhammad Akram have relied on rule 15 (4) of the West Pakistan Irrigation Engineers Service Class‑1 Rule, 1967 and have contended that the rule of seniority as laid in rule 15 (2) would not be attracted to the case of respondents but only sub‑rule (4) would be applicable in their case. They have further adopted in extenso para-wise comments submitted by respondent No. 1 and have urged that the criteria for fixing the seniority of the appellant's qua the contesting respondents would be the date of induction as Officiating Executive Engineers and the seniority in lower grade held by the appellants would be of no avail to them while fixing their seniority in the higher grade i.e. Officiating Executive Engineer. It has further been contended that contesting respondents have not so far been given regular Class‑1 (Junior) as their status has been raised to Class‑1 (Junior) w. e. f. 22nd July, 1971 which does not amount to their regular promotion to Class‑1 (Junior) and in view of this there does not exist any inter se seniority between the parties in Class‑I (Junior) which may possibly be reflected in Class‑1 (Sr).

13. We have given our anxious thought to the arguments so raised before us and have perused the record of this case alongwith the rules and law cited before us by the parties.

14. In this matter we will first of all advert to rule 15 (2) of 1961 which lays down as under :‑

"Notwithstanding anything contained in sub‑rule (1), the seniority of Class‑11 Officers and Temporary Engineers recruited to or absorbed in the Service, who were holding the posts of Executive Engineers of equivalent posts, shall be determined with reference to their con tinuous officiation as such; provided that if in any particular case Government is of the opinion that the application of this sub‑rule causes or will cause hardship to one or more members of the Service, Government may, in consultation with the Commission assign to the persons concerned such seniority as it considers equit able. This rule is supplemented with three explanations which we also produce for ready reference.

Explanation I.‑If a junior officer in a lower grade is promoted to a higher grade temporarily in the public interest, even though continu ing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade

Explanation II.‑If a Junior Officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.

Explanation III.‑A Junior Officer appointed to a higher grade shall be deemed to have superseded a senior officer if both the junior and senior officers were considered for higher grade and the junior officer was appointed in preference to the senior officer."

15. The plain meaning of these Explanations is that an officer senior in lower grade will be deemd to be senior in higher grade although he might has been promoted on later date unless and until he stood superseded.

16. Sub‑rule (2) of the rule 15 is also clear on the subject as it applies to those persons who were holding the posts of Executive Engineers before coming into force of the Rules of 1967.

17. Now we look into a claim of respondent wherein it has been asserted that the applicable clause of section 15 would be clause (4) and not clause (2). We reproduce the same for ready reference.

Clause 4, rule 15.‑‑Seniority in the various grades of the service of the members appointed by initial recruitment vis‑a‑vis those appointed other -wise shall be determined‑

In case both the officer appointed by initial recruitment and the officer appointed otherwise have been appointed against substantive vacancies, or both have been appointed against temporary vacancies, with reference to the date of appointment to such vacancy in the case of officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of officer appointed otherwise; provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment.

18. We need not deal with this argument further as the application of this rule is restricted to fixation of seniority of members of the service appointed by initial appointment' vis‑a‑vis those appointed otherwise' to the same grade. In the present case the appellants as well as the respon dents both are promotees i.e. "appointed otherwise" as Officiating Executive Engineers therefore, by no measure sub‑rule (4) is applicable to the facts of the present case. This point was further conceded by the learned District Attorney who submitted that the application of rule 4 was uncalled for as respondents as well as the appellants were all promotees to the post of Officiating Executive Engineer and respondents were never recruited directly to the above posts. We have quoted rule 15 (2) above and while analysing the same have come to a conclusion that the principle laid down therein fully applies to all the appellants and the contesting respondents. We are further fortified in our above view by the aforementioned judgment, dated 1st June, 1973 in which this issue was before the learned Tribunal and the same was settled by the Tribunal in unequivocal terms following rule 15 (2). The learned Tribunal in the earlier part of their judgment held that the appellants in these cases were positively senior as Assistant Engineer in Class‑II and then they proceeded to determine their seniority as Assistant Executive Engineers in Clause I (Junior). It was held as under :‑‑

"Thus those from amongst the parties who were graduate Engineers were raised in status to Class I (Junior) by upgrading of the post, their inter se seniority which they enjoyed in the earlier rank of Assistant Engineer, they will maintain their seniority in Class I (Junior) in accordance with their seniority as Assistant Engineers."

The learned Tribunal further elaborated by dealing with the case of Mr. Naeem Ahmad Khawaja appellant in that case and said while Mr. Naeem was promoted as Officiating Executive Engineer on ad hoc basis from 15th June, 1963 which is the date before 1969 rules were notified. He was promoted on regular basis with the approval of Public Service Commission by order of 14th October, 1961 w. e. f. 15th June, 1963. Thus, he has been absorbed as Executive Engineer after the rules were enforced. The learned Tribunal further examined the case of the other appellants service and concluded in the following terms.

"The determination of inter se seniority of the four appellants and such of the respondents as have been promoted as Officiating Executive Engineer on regular basis is governed by sub‑rule (2) of rule 15 of the West Pakistan Irrigation Engineers Service Class I Rules, 1967, which provides that notwithstanding anything contained in sub‑rule (i) of rule 15, the seniority of Class 11 Officers and Temporary Engineers recruited to or absorbed in the service, who were holding the posts of Executive Engineers or equivalent posts, shall be determined with reference to their continuous officiation as such ; provided that if in any particular case Government is of the opinion that the application of the rule causes or will cause hardship to one or more members of the Service, Government may, in consultation with the Public Service Commission, assign to the persons concerned such seniority as it considers equitable. Sub‑rule (2) of rule 15 is followed by the three standard explanations, which have the seniority of a senior officer in the lower rank though promoted later unless he has been superseded. While the effect of rub‑rule (2) of rule 15 is to make those who are promoted earlier senior to those who are promoted as Executive Engineer later on the basis of dates of continuous officiation, the effect of the three standard explanations is to safeguard the seniority of the senior officer unless he has been superseded."

19. We are fully in agreement with the above view and hold it as correct interpretation of rule 15 (2) and no exception can be taken to this issue. This view of the P. C, S. A. T. has now attained the finality which cannot be interfered with by us at this stage, as the same is based on the fundamental principles of seniority i.e.. persons holding senior position in the lower grade continues to be senior in higher grade as well.

20. We further find that the respondent No. 1 has applied different yardsticks to different persons which we cannot approve. In the earlier seniority list issued vide Notification of respondent No. 1 has fully implemented the decision of the learned Punjab Civil Service Appellate Tribunal in the aforesaid appeal as mentioned in the earlier part of our judgment in case of Messrs Naeem Akhtar Khawaja while drawing up that list respondent No. 1 arranged the seniority of contesting respondents amongst themselves as well as again others according to their basic seniority and irrespective of the dates of their officiation as Executive Engineers. To the contrary while fixing appellants, seniority vis‑a‑vis contesting respondents Government has now chosen to ignore the said criterion. This sort of contradictory stand is absolutely against the settled principle of law and rules and we have no hesitation to hold that the stand now taken by the respondent No. 1 cannot be allowed to prevail. As pointed out by the learned counsel for the appellant we have found that in the impugned seniority list the seniority inter se of Contesting Respondents and others has been shown senior in accordance with their basic seniority and irrespective of their dates of promotion as Officiating Executive Engineers. We, therefore, get further strength to our view that the depart ment has failed to do justice in the case of appellants who have been dealt with at whim and fancy. We are also not impressed by the conten tion of the learned counsel of respondents that upgradation of status of the Contesting Respondents to Class‑I (Junior) w. e. f. 22nd July, 1971 does not amount to their regular promotion to Class I (Junior). We do not see any difference between raising of status to Class 1 (Junior) and promotion to that Class.

21. The result is we accept the appeals and declare the appe11ants senior to the contesting respondents as Officiating Executive Engineers as they have been found undisputedly senior to them as Assistant Executive Engineers in Class I (Junior) and have not been superseded by them. The result is that the impugned seniority lists, dated 14th October, 1972. 19th August, 1975 and 16th February, 1982 are set aside to the extent as discussed above and direct the respondent No. 1 to assign new place of seniority to the parties as directed by us in seniority list which should be at once amended. However, the parties will bear their own costs.

A. E. Appeals accepted.

Find a Lawyer Near You

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