KHUSHI MUHAMMAD Versus THE GENERAL MANAGER

1. SAJJAD AHMAD, J. ‑The appellants who are departmental promotees as Railway Guards, Grade II (now changed into Grade I), brought a writ petition in the High Court of West Pakistan, Lahore, under Article 2 (4) of the Laws (Continuance in Force) Order of 1958, whereby they challenged the list of confirmation‑cum‑seniority of the personnel of their grade issued by the General Manager of the Pakistan Western Railway, on the 27th of October 1958, as illegal and without lawful authority being opposed to the relevant rules bearing on the subject. Their grievance, in brief, was that in the matter of determination of their seniority and confirmation vis‑a‑vis the directly‑recruited Railway Guards who were impleaded as respondents in this appeal by order of this Court dated the 3rd of December 1969, the impugned list was in violation of the basic principle that seniority between incumbents in the same grade is to be deter mined from the date of their entry in the grade and that confirmation takes place in the same order of seniority. The learned Judges of the Division Bench of the High Court who dealt with the writ petition, called for a report from the department and on perusal thereof, dismissed the petition in limine by a very short order, holding that the appellants (the writ petitioners before them) who were promotees, had failed to establish that their seniority should be reckoned from the date of their appointment and not of their confirmation.

2. Leave was granted by this Court on the 30th of June 1964, as the question raised being of first impression, was of general importance, namely, whether vested rights of seniority in the cadre of an established service can be said to arise for purposes of enforcement through law only on the date of induction into the permanent section of that service or whether, in the alternative, they exist and are so enforceable even before confirmation, i.e. at a stage when the incumbent is only holding a temporary post or is officiating, in the tentative or non‑established section.

3. According to the policy followed by the North Western Railway, since 1938 and in its wake now by the Pakistan Western Railway, vacancies in the cadre of Guards, Grade II, are filled on the basis by 50 % by direct recruitment and 50 % by promotion of the staff in service in the lower categories, viz. ticket‑collectors and train clerks after they have qualified as guards. The relevant instructions to this effect are contained in letter No. 522‑E‑293 dated 5‑5‑1938, Annexure `C' on record. In issuing the impugned seniority‑list, it seems that the Department has followed the same ratio of 50 : 50 for all the entrants in this grade from the two separate categories‑ mentioned above, without regard to the point of time of their respective entry in that grade. According to the General Manager's letter No. 847‑E/103 (Spl.) dated the 25th of September 1948 (Appendix XIII to Advance Chapter No. I of Personnel .Manual), the deciding factor for the determination of seniority of the incumbents inter se in the grade is the date of their appointment to it. A seniority list was prepared in the year 1956 vide letter No. 847/E/00‑5‑3 (E. 6) dated the 14th of September 1956, in which no distinction was made between the direct appointees and the departmental promotees, including those who had come from Bharat's railway services on option to Pakistan after Partition. According to the letter of the Government of Pakistan, Ministry of Communications, Railway Division, No. E 49 P.M.I/6, Annexure "B" on record, confirma tion in non‑gazetted posts like those in question, was to be made in order of seniority subject to fitness and completion of proba tionary period. The combined effect of both these letters is that whereas seniority in the grade is to be determined from the date of appointment to the grade, confirmation takes place in order of that seniority subject, of course, to the rule of efficiency and fitness.

4. By placing the direct recruits in the grade as senior to the departmental promotees, although the latter had entered the grade earlier than the former, the impugned seniority list deems, by way of a fiction, that the direct recruits were the holders of the posts reserved for them in the grade on fifty basis, although they were not actually appointed to those posts and whenever appointed they should be deemed to have been appointed from the date from which the vacancy of their quota was to be filled. In other words, vacancies arising in their quota are deemed as permanent vacancies reserved for them, although, in the meanwhile, departmental promotees have been appointed against those vacancies. The latter have, therefore, to be relegated to the position of juniority as against the direct recruits whenever appointed to the vacancies reserved for persons from their quota. We have not been shown any rule to uphold this method of determining seniority and none is discoverable on g general principles. In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 50 : 50 between the direct recruits and the departmental promotees merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that confirmation in the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promotee, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in[ point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade.

5. It is pointed out by the learned counsel for the appellants that so far as the North Western Railway, now Pakistan Western Railway, is concerned, a large number of guards in Grade II, now Grade I, are working in an officiating capacity as guards since before the year 1940. In fact, appointments to this grade have generally been made in an officiating capacity, although they have almost a permanent character. In any case, the lien of a direct recruit cannot be reserved on a post to which he is not appointed and a direct recruit if working in an officiat ing capacity until his confirmation, remains officiating as much as a departmental promotee in the same situation and no distinction can logically exist between the two on that score.

6. In view of what has been stated above, we accept this appeal, set aside the orders of the High Court and issue a writ as prayed for by the appellants, directing that their seniority in the grade qua the respondents (Nos. 3‑‑28) should be fixed according to their respective dates of entry into the grade. The appellants are allowed the costs of this appeal.

7. S. Q. Appeal accepted.