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Case No. 318 of 1981, decided on 24^th November, 1981.

Ali Akbar Khan v. Commissioner

(S. Abdul Jabbar Khan, Chairman)

‑‑‑S. 21‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.8‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑Civil servants‑‑Seniority, determination of‑‑Both claimants joining new assignment on same date‑‑Senior in age, held, would be deemed to be senior to one junior in age‑‑Impugned order fixing seniority on principle of age would not merit interference by Service Tribunal.

Rana Sarwar for Appellant.

H.R. Cheema, D A for Respondents.

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑‑Ali Akbar Khan has filed this appeal under section 4 of the Punjab Service Tribunal Act. 1974, against the order of the learned Commissioner, Lahore Division Lahore conveyed to the Deputy Commissioner, Kasur, vide Memo. No 3607, dated 2‑6‑1981, whereby while accepting the representation of Muhammad Aslam Minhas, respondent No.3 against the order, dated: 31‑8‑1978 of Deputy Commissioner, Kasur, has declared Muhammad Aslam Minhas, respondent No.3 as senior to the appellant.

2. By virtue of this appeal the appellant prayed that the impugned order of Commissioner, Lahore Division, Lahore, dated 2‑6‑1981 be set aside and Deputy Commissioner Kasur's order dated 31‑8‑1978 be maintained. Brief facts of the case are that as a result of bifurcation of the Lahore and Kasur Districts, it was decided to fill new posts sanctioned for Kasur District by appointment of staff from other departments. Under District Cadre Service Rules, 1964, posts of Senior Clerks could only be filled by promotion and that too from amongst Junior Clerks of Deputy Commissioner's Office. Since these posts could not be filled by initial appointment, it was not possible to do so from outside. In this way rule had to be relaxed by the Government which it did by order of 14‑5‑1977. In consequence of abovementioned order the appellant as well as the contesting respondent who were then working in the Fisheries Department were directly appointed as Senior Clerks w.e.f 1‑7‑1976 by initial appointment. Respondent No.3 was offered appointment by orders dated 12‑5‑1976 and 3‑6‑1976 whereas the appellant was given this assignment by order dated 3‑6‑1976. These orders contained a condition that the incumbent will not be able to claim any seniority for his past service and his seniority would be fixed from the date of his joining at Kasur from 1‑7‑1976. The appellant and contesting respondent both accepted the above terms and conditions Deputy Director Fisheries was also informed of the situation that no lien of these appointees would be retained in the Fisheries Department However, after the new districts started functioning the preparation o' the seniority list of the ministerial staff was taken into hand and finalized on 31‑8‑1978 in accordance with the procedure laid down namely Punjab Civil Servants Act 1974 and Punjab, Revenue Department, Ministerial Servants (District Cadre) Rules, 1964 as per advice of the Board of Revenue contained in Memorandum No.BC/170/G, dated 6‑3‑197

from the Deputy Secretary (Revenue Establishment) Board of Revenue, Punjab, to the Deputy Commissioner Kasur. This list was duly approved bonistaicp,3 by the Deputy Commissioner, Kasur on 31‑8‑1978 in which the appellant was placed at Sr. No. 5 of the Senior Clerks against respondent No.3 who was assigned Sr. No. 8 in that list. This list was circulated under Memorandum No. BC/9568‑69, dated 3‑9‑1978. After the circulation of the seniority list respondent No.3 made a representation on 9‑9‑1978 claiming seniority over. the appellant and others. This representation was rejected on 5‑12‑1978. Against this order, dated 5‑12‑1978 Mr. Muhammad Aslam Minhas, respondent No. 3 filed a representation to the learned Commissioner, Lahore Division, Lahore on 2‑1‑1979. The learned Commissioner vide his order dated 2‑6‑1981 set aside the seniority list formulated by the Deputy Commissioner and declared Muhammad Aslam Minhas to be senior to the appellant Ali Akbar Khan. Hence this appeal.

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

4. It has been argued on behalf of the appellant that once the Deputy Commissioner has confirmed the seniority list in accordance with the procedure laid down in the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 and Punjab Revenue Department, Ministerial Servants (District Cadre) Rules, 1964 as per advice of the Board of Revenue contained in Memorandum No.BC/170/G, dated 6‑3‑1978, from the Deputy Secretary (Revenue Establishment) Board of Revenue, Punjab, therefore, the Commissioner was not justified to disturb the same on the representation of the respondent No.3 which was against the rules. It has been further argued that the appellant being senior in Fisheries Department (his parent department) to the respondent No.3 would retain his seniority as such and could not be declared junior in any manner whatsoever. It has been vehemently argued that respondent No.3 was not authorised to file a representation to the Commissioner as there was (no) provision for such exercise under the rules and the order of the Deputy Commissioner would be deemed final in this matter.

5. On the other hand the learned District Attorney assisted by the department as well as M.A. Riaz, learned counsel for the contesting respondent No. 3 have submitted that there was no bar for respondent No.3 in filing a representation before the Commissioner against the order of Deputy Commissioner as the same is permitted under section 21 of the Punjab Civil Servants Act, 1974. With regard to the previous service of the appellant in the Fisheries Department, it has been submitted that it is on the record that the appellant clearly and categorically accepted his appointment as Senior Clerk in the office of the Deputy Commissioner, Kasur on the condition that he would not claim any seniority for his past service. According to the learned District Attorney and Mr. M.A. Riaz, learned Advocate this stipulation was laid down in the appointment order itself to which the appellant concurred and thus it did not lie in his mouth to claim his seniority on his past service in the Fisheries Department. It has been further urged that as both the appellant and the respondent were inducted into service on the same date i.e. 1‑7‑1976 the‑ respondent being senior in age as well as in qualification would be deemed senior. It is urged that the order of the Commissioner was fully justified and is, therefore, to be maintained.

6. We have given our anxious thought to the contention raised by the parties and find fully borne out from the record that the selection of the appellant as well as the respondent was termed as under:‑

His selection is subject to the following terms and conditions:

"He should not claim any seniority for his past service. His seniority would be fixed from the date of his joining at Kasur on 1‑7‑1976".

This is mentioned in letter No.O.S.D. (Kasur)/123/C.M., dated 12‑5‑1976 from Mr. Muhammad Ashraf, Officer on Special Duty, Kasur, Office of the Commissioner, Lahore Division, Lahore to the Director of Fisheries, Punjab, Lahore, and letter No. Confdl/O.S.D./278/C, dated 3‑6‑1976 from Mr. Muhammad Ashraf to Extra Assistant Director Fisheries, Small Dams, 5‑Chaklala Road, Rawalpindi relating to the appointment of the respondent and the appellant respectively. Both these letters are placed with record of this appeal as Annex‑R2 and Annex‑R4 at pages 10 and 12 of the file respectively. In both these letters, it has been made very clear to both these appointees that they would not claim any seniority for their past service in the Fisheries Department and their seniority would be fixed from the date of their joining at Kasur on 1‑7‑1976. We also further find that there is a certificate signed by the appellant as under:‑

Certified that the terms and conditions laid down in your letter No. 270, dated 8‑6‑1976 based on the Officer on Special Duty (Kasur) Office of the Commissioner, Lahore Division, Lahore, confidential letter No. Confdl/O.S.D/278/C, dated 3‑6‑1976 are all acceptable to me.

(Sd.) (Ali Akbar Khan),

Senior Clerk

Office of the Extra‑Assistant Director Fisheries, Small Dams, 5‑Chaklala Road, Rawalpindi.

7. In context of these two abovementioned letters and certificate, we have perused the letter from the Commissioner to Deputy Commissioner Kasur dated 2‑6‑1981 which is now impugned before us and find that later Commissioner has taken into account all the circumstances of this case as well as the minutes of the Departmental Selection /Promotion Committee dated 14‑1‑1970 was fully justified to arrive at the conclusion at which he has arrived. We fully agree with his observation that as the past service of the appellant as well as the respondent stood eliminated by virtue of stipulation so laid down in their appointment letters and acceptance of the same, it was primarily the function of the Selection /Promotion Committee to determine the merit inter se of the present appellant as well as the respondent.

8. It is a principle of law that when both the incumbents join their new assignment at one date the senior in age would be deemed to be senior against the person junior in age. With regard to the objection that the respondent No.3 could not make any representation to the A Commissioner (Higher Authority) the same cannot be sustained in view of the section 21 of the Punjab Civil Servants Act, 1974 which fully makes such representation eligible. It is also further on the record that the relevant provisions of the rule relating to the appointment as senior clerk of respondent No.3 Mr. Muhammad Aslam Minhas, were related by the Board of Revenue vide their letter No. 6851‑76/962/E(M)I, dated 14‑5‑1977, on the basis of the recommendations made by the, Deputy Commissioner, Kasur in his letter No.BC/312 dated 5‑11‑19761 recommending in his case, inter alia that the relevant provisions of the rule may be relaxed on compassionate grounds. Therefore, the condition of domicile of respondent No.3 already stood relaxed by the Board of Revenue and cannot stand in the way of this respondent.

9. In the light of the above discussions, we are of the considered opinion that the order of Commissioner fixing the seniority of the respondent No.3 is not in any way unjustified or arbitrary, therefore, no exception can be taken to this well reasoned and lucid order. The result is, the appeal is dismissed as being without any merits.

A.A. Appeal dismissed.

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