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Case No. 4811353 of 1983 decided on 23rd January, 1984.

‑‑ S. 22‑‑Seniority‑Disturbed by conferment of pro forma promo tion‑Plea that scope of S. 22 was limited and it could not be used to disturb terms and conditions of civil servants, repelled by Tribunal ‑ Held : Interference by Governor was justified in circum stances of case.

Hamid‑Khan for Appellant.

A. G. Humayun, District Attorney for Respondents.

‑Syed Wasiq Arshad, Labour Officer, Directorate of Labour Welfare, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Governor of Punjab, Lahore, Government of Punjab through Secretary, Department of Labour Civil Secretariat, Lahore, Director Labour Welfare, Directorate of Labour Welfare (Punjab), Canal Park, Lahore and Muhammad Saeed, Superintendent, Directorate of Labour Welfare, Gujran wala Region, Satellite Town, Gujranwala, as respondents.

2. By virtue of this appeal he has prayed that the impugned order of respondent No. 1, dated 30th August, 1983, be set aside and the inter se seniority of the appellant and respondent No. 4 as fixed and determined under the seniority list of 26th June, 1973 (Annexure 'C') and order, dated 18th November, 1976 (Annexure 'F') be upheld.

3. Brief facts of the case are that the appellant was appointed as Assistant in the Directorate of Labour Welfare, Lahore Region, Lahore, vide appointment letter No. E/3968‑71, dated 10th November, 1969 and joined service on the same date. Respondent No. 4 was promoted to officiate as Assistant in the Labour Welfare Department, Lahore Region, Lahore, vide order, dated 21st November. 1969 and he joined service as Assistant in pursuance of order on 8th January, 1970. The appellant and respondent No. 4 continued to serve as Assistants in the Labour Welfare Department when on 26th June, 1973, a seniority list of Assistants in the Lahore Region was circulated in which the appellant was placed at No. 2 and respondent No. 4 was placed' at No. 3, according to the dates of their continuous appointment. Respondent No. 4 made two applications requesting that his date of promotion as an Assistant be considered effective from 4th October. 1969, instead of 21st November, 1969. On these applications the Zonal Directorate Labour Welfare, Lahore Region, was pleased to recommend to the Director, Labour Welfare, Government of the Punjab that his request could not be acceded to because it was against the provisions of rule 9 (2) (a) of the West Pakistan Labour Wel‑fare Ministerial Service (Regional) Rules, 1969. Meanwhile the appellant was promoted to the post of Superintendent, vide order, dated 13th October, 1973. The seniority of the appellant was further confirmed by an order passed by the Director, Labour Welfare, Lahore Region, dated 18th November, 1976, in which the appellant was shown at serial No. 2, whereas respondent No. 4 was shown at serial No. 3, in the order of seniority. This process of promotion continued and the appellant was promoted to the post of Senior Superintendent w. e. f. 19th May, 1980, and respondent No. 4 was promoted as Superin tendent against the vacancy of Superintendent created by the promotion of the appellant. The appellant was promoted as Labour Officer on 18th July, 1981. On promotion of the appellant as Labour Officer, the respon dent No. 4, submitted an application to the Director, Labour Welfare with copies to the Minister for Labour and Secretary, Labour Department, Government of the Punjab, requesting for pro forma promorion w. e. f. 1st November, 1969, and in this way claimed seniority over the appellant Although this was resisted by the S&GA D' but ultimately the appel lant was informed, vide order,‑ dated 30th August, 1983, where it was stated that in exercise of the powers conferred in the Governor of the Punjab by section 22 of the Punjab Civil Servants Act, 1974, the respondent No. 4 would be treated to have been promoted as Assistant w. e. f. 1st November, 1969, the date on which his first option seas sought by' the Director, Labour Welfare. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart ment and have perused the entire record of this case carefully with their assistance.

5. Learned counsel for the appellant has argued that as appointment order of the appellant was passed on 10th November, 1969, and he joined the service on the same date whereas the appointment order of respondent No. 4 was passed on 21st November, 1969, and he joined service on 8th January, 1970, therefore, the appellant was clearly senior to the respon dent No. 4 both from the date of appointment as well as from the date of his joining service. 1t was further argued that as inter se seniority of the appellant and the respondent No. 4 had been determined, finalized and confirmed in the seniority list dated 26th June, 1973 and order, dated 18th November, 1976, and the inter se seniority had attained finality, therefore there was no justification to open the matter at this stage. A grievance was made that the impugned order had been passed behind the back of the appellant and without giving him any opportunity of being heard, therefore, the said order was repugnant of audi alteram partem. He has also made a grievance that Malik Allah Yar Khan, Minister for Labour and Industries, who was personally known to respondent No. 4, played a vital role in securing the impugned order from the Governor. With regard to the powers of the Governor under section 22 of the Punjab Civil Servants Act, 1974, learned counsel for the appellant has submitted that the said section would not be pressed into present case because it cannot be considered just or equitable to disturb the inter se seniority of two civil servants finally settled for nearly fourteen years. It was vehemently argued that section‑22 of the Punjab Civil Servants Act, 1974, was only meant to redress the hardship cases only and could not be used to disturb the terms and conditions of any civil servant.

6. We have given our anxious thought to the arguments so advanced by the parties and after going through the entire file which culminated in the conferment of pro forma promotion, vide impugned order, dated 30th August, 1983. to Muhammad Saeed, respondent No. 4, we find that Muhammad Saeed Sheikh, senior clerk of the Office of the Joint Director, Labour Welfare, Lahore Region, was senior most according to the seniority list and was eligible for promotion as Assistant from the date of occurrence of the promotion vacancy i. e. 1st November, 1969 respondent No. 4 at that time was working in the Regional Office at Karachi. The Depart ment instead of promoting the official straightway in absentia from the aforesaid date, sent an offer of promotion as Assistant to respondent No. 4 at Karachi. The respondent No. 4 accepted the said offer on 6th November, 1969, but was actually promoted as Assistant on 21st November, 1969. Meanwhile the appellant was appointed as Assistant direct, under the direct recruitment quota of 1/3rd w. e, f. 10th November, 1969, thus allowing him to become senior to the respondent as Assistant in the first instance and as Superintendent subsequently We are also inclined to agree with the views of Mr. Akhtar Said, Secretary Labour Punjab, in his note, dated 1st January, 1983, that the offer of promotion made in the case of Muhammad Saeed Sheikh was rather unprecedented and be being already in service of the Department and eligible for promo tion should normally have been promoted as Assistant w. e. f. 1st November, 1969, the date on which the promotion vacancy occurred. Another intriguing feature of the case would be that although the respon dent had accepted that unprecedented offer of promotion on 6th November 1969, but his promotion was delayed until after a direct appointee had recruited, thus making the respondent junior to the appel lant. Undoubtedly the Services, General Administration and Information Department stood in the way of the legitimate claim of the respondent No. 4, but the facts given as above would fully support the legitimate logic of the Secretary, Labour Punjab so propounded in his note mentioned above. This case was further scrutinized by the Minister for Revenue, Industries, Labour and Local Government, Punjab, vide his note, dated 23rd February, 1983, in which he had strongly condemned this sort of indis criminate and malicious treatment to the respondent No. 4, in order to benefit the appellant. He has also dialated as well as highlighted the pivotal point i. e. that when the respondent No. 4 was mature and eligible for promotion on the strength of the seniority against a vacancy so avail able, there was no fun in asking for his option and allowing the appellant to march over the seniority of the respondent No. 4 by appointing him on 10th November, 1969. According to the Minister, this was quite obvious that the Appointing Authority in the Labour Directorate, wilfully and dishonestly tried to favour the appellant, a direct recruit by with holding the notification of promotion of the respondent No. 4 for complete 11 days, after the appointment order of the appellant. The Minister in his note has further exposed the hallow-ness of the S&GAD conten tion that by allowing pro forma promotion to the respondent No. 4, a pandora box was going to open by observing that it was incumbent upon the S&GAD to first of all decide:‑

(a) Whether it was regular on the part of the Directorate not to promote Muhammad Saeed Sheikh in absentia

(b) Whether it was right and was required under the rules to ask for his consent for promotion

(c) Being the senior most in his cadre should Muhammad Saeed Sheikh not have been promoted automatically, the day the vacancy fell.

We after going through the entire case, find that S&GAD was silent on these points and could not contradict the argument of the Minister. This case was put before the Governor of the Punjab, in a complete form, in which all the facts and law point involved, were highlighted by the Additional Secretary (Services) S&GA I Department, vide his note, dated 31st July, 1983. The matter was looked into by the Chief Secretary, Punjab and he endorsed the said proposal of the Additional Secretary (Services) and thereafter the M. L.'A./Governor approved the pro forma promotion of the respondent No. 4. This is how the impugned notification came into existence.

7. With regard to the arguments of the learned counsel for the appel lant that the scope of section 22 of the Punjab Civil Servants Act, 1974, was limited and. the powers of the Governor was. not unabridged, we have no hesitation to repel this argument as the same runs contrary to t he very wording of section 22, itself. We reproduce section 22, as under:‑

"Nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant in such manner as may appear to him to be just and equitable."

In this case, the Governor with full application of mind after going through the entire history of the case with comprehensive and elaborate note of the Minister, has rightly come to the conclusion that the case of respondent No. 4, was a case of great hardship in which people at the lower level had managed to injure his rights vis‑a‑vis his seniority with the appellant and therefore, it was a case in which interference with highly called for and the only way to repair the damage done to him, was to exercise his powers under section 12 of the Punjab Civil Servants Act, 1974, which he so fully empowered.

8. In view of the above, we do not find any merit in this appeal, which is dismissed accordingly. However there will be no order as to costs.

M. I. Appeal dismissed.

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