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Cases Nos. 370/333 and 372/335 of 1983, decided on 2nd November, 1985.

(a) Punjab Service Tribunals Act (IX of 1974)‑‑

‑‑‑S. 4‑‑West Pakistan Irrigation Department Industrial Service (Regional Offices) Rules, 1962, R.9(b)‑‑Punjab' Civil‑Servants (Appointment and Conditions of Service) Rules, ' 1974, R.8(b)‑‑Seniority, determination of‑‑Seniority, held, would have to be determined in accordance with reference to dates of continuous appointment in a grade.

(b) Civil service‑‑--

‑‑‑Seniority‑‑Maxim: audi alteram partem‑‑Scope of‑‑Second seniority list preferred by Department against decision of appellate Tribunal as well as against fundamental principle of audi alteram partem‑‑If change in seniority list was necessitated, Authority doing so would be required to hear affected persons who had established their seniority through Appellate Tribunal as well as by order of competent Authority.

(c) Punjab Service Tribunals Act (IX of 1974)‑‑

‑‑‑S. 4‑‑Appellate jurisdiction, exercise of‑‑Seniority list prepared against decision of Appellate Tribunal and without hearing affected persons was set aside by Service Tribunal in appellate jurisdiction.

Haji Mushtaq Ahmad and Aqil for Appellant.

A.G. Humayun, District Attorney for Respondents. Date of hearing: 2^nd November, 1985.

Messrs Qadir Bakhah and Muhammad Boota have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which an Appeal No. 372/335 of 1983, Qadir Bakhsh has impleaded Chief Engineer, Irrigation, Mqltan Region, Multan, Superintending Engineer Headquarters, Irrigation, Multan Region, Multan and Messrs Habib Ullah, Muhammad Bashir, Muhammad Nawaz, Maqbool Ahmad, Muhammad Aslam, Ghulam Yasin and Muhammad Khalil, all Assistant of the office of the Chief Engineer, Irrigation, Multan Region, Multan, as respondents and in Appeal No. 370/333 of 1983, Muhammad Boota has impleaded Chief Engineer, Irrigation, Multan Region, Multan, Superintending Engineer, Headquarters, Irrigation, Multan Region, Multan and Messrs Ghulam Hassan Bhatti, Muhammad Ramzan, Abdul Hamid, Munawar Ahmad, all Assistants and Iqbal Hussain, Senior Clerk, Office of the Chief Engineer, Irrigation, Multan Region, Multan, as respondents.

2. By virtue of these appeals both the appellants have claimed seniority over the respondents so mentioned above and have prayed that the seniority list so impugned be set aside.

3. Brief facts of the case are as under:‑

"Qadir Bakhsh.‑‑He joined service in the Irrigation Department in the year 1956 as Junior Clerk. He was transferred to the Office of Deputy Chief Engineer, Multan in the year 1961. In the year 1962, the Department was re‑organized as a result of which Multan Region was abolished and he was transferred to Sargodha Region at Faisalabad. Multan Region was newly created in 1968 and he was transferred from Sargodha Region to Multan Region. In the year 1974, a seniority list was published in which the appellant was shown at Serial No. 8 wherein he became senior to all the respondents except Muhammad Bashir respondent No. 4. The persons aggrieved against the seniority list filed appeal before the Chief Engineer Irrigation, who passed on order, dated 18‑9‑1974, in which he made certain observations via‑a‑via the status of the appellant as well as of the respondents. The observation of the 'Chief Engineer was implemented by another seniority list which was issued on 24‑9‑1974. By virtue of this list the appellant became senior to three respondents namely Muhammad Aslam, Ghulam Yasin and Muhammad Khalil. Certain representations were again made against him and it was in 1976 that the Superintending Engineer vide his order, dated 21‑9‑1976, observed that the list had become final and no chance was possible in the same and further observed that if anybody had a grievance he could only go to the Service Tribunal. This situation remained intact till 1962, when a seniority list came in the field which is impugned seniority list and the appellant was shown as junior. Hence this appeal."

Muhammad Boots.‑‑He joined Irrigation Department as Junior Clerk in 1966 in the Irrigation Remodelling Organization Circle, Lahore. In the year 1968, this Circle was abolished and the appellant came to Multan Region as Junior Clerk. However, the Secretary Irrigation placed a condition on his case that he would remain junior to the other incumbents working in the said Region. This condition was challenged by some of his colleges before the Civil Services Appellate Tribunal, which was pleased to strike down this condition, holding that nobody was competent to import the same. This judgment is‑ reported as 1974 PLC (CST) 11. The final seniority list was published in 1974, where he was shown senior to his contesting respondents in this appeal. This situation was challenged but the Superintending Engine6r by his order, dated 21‑9‑1976, observed that it was a final seniority list and if anybody had a grievance he could seek remedy before the Service Tribunal. This situation continued when one fine morning seniority list of 1983 came in the field and the appellant was shown junior. Hence this appeal.

4. I have heard the learned counsel for the appellants as well as learned District Attorney and the contesting respondents who were present in person and have perused the entire record of this case carefully witty their assistance.

5. As the point of law as well as facts are identical in both these appeals, I will dispose of the same with this single judgment.

6. The record of the case reveals that the dates of continuous officiation effective for seniority benefit have wrongly been given in the seniority list which in fact are as follows:‑

In case of Qadir Bakhsh Bhatti

In case of Muhammad Boots

Moreover, in Appeal No. 189/126 of 1972 decided by the Punjab Civil Services Appellate Tribunal, Lahore, on 27‑10‑1972, it was held that paragraph 17(a) of the Integration Circular is infect attracted to the case in so far as the appellants and respondents Nos. 2 to 4 are all post‑integration employees. The Tribunal further held that it bras inherent in the terms of this paragraph that a person appointed earlier or in an earlier selection would rank senior to a person who was selected or appointed later. It is also established principle of law that power to deny the benefit of seniority in accordance with para. 17(a) of the Integration Circular would not be with the Secretary to Government of Punjab, Irrigation Department, as their seniority had to be determined on the basis of this paragraph which entitles the appellants to the benefit of past service rendered by them. In Appeal No. 217 of 1976, decided by the Tribunal on 28‑11‑1979, it was held that any condition against provisions of Rules became invalid in the face of Rules. Moreover, the Department of Irrigation (Chief Engineer, Sargodha) admitted that rule 3(1) and rule 10 of the West Pakistan Irrigation Department Industrial Service (Regional Offices) Rules, 1962, provided for filling up of posts by transfer, whereas seniority had to be determined in , accordance with reference to the dates of continuous appointment in a grade as provided in rule 9(b) of the above‑mentioned rules as well as 8(b) of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974. It is available on the record that respondent No. 2 had allowed benefit to Messrs Ghulam Yasin and Khushi Muhammad whose cases are almost identical.

7. The very fact of appellants history of service reveals that the persons aggrieved against the earlier seniority list filed appeal before the Chief Engineer Irrigation who passed an order on 18‑9‑1974, in which he made certain observations via‑a‑via the status of the appellants as well as respondents. These observations were implemented by another as seniority list was issued on 24‑9‑1974 by which the appellant became' senior to the contesting respondents. It is also established on record as given in the case of appellant's history that certain representations were made against the same and the Superintending Engineer (Headquarters) competent authority, observed that the list had become final and if anybody had a grievance he could go to the Service Tribunal. In this situation second seniority list would be absolutely without any legal effect as the same is against the decision of the Appellate Service Tribunal as well as against the fundamental principle of justice of audi alteram partem. If the change was necessitated which has occurred through the impugned seniority list then it was incumbent upon the Authority doing so to hear the appellants who had established their seniority through the decision of the appellate Tribunal as well as by the order of the Superintending Engineer, dated 21‑9‑1976, whereas the respondents on the other hand had failed to approach the Service Tribunal for the redress of their grievance if any. In these circumstances the appellants are senior to the respondents and we have no hesitation to hold that the respondents are definitely junior to the appellants.

8. In view of the above I accept the appeals set aside the impugned seniority list and declare the appellants senior to the contesting respondents. I also direct the respondents Nos. 1 and 2 to correct the impugned seniority list accordingly in so far as the appellants as well) as the contesting respondents are concerned. However, there will be

no order as to costs.

A. A. Appeals accepted.

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