ZULFIQAR ALI TOOR Versus ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF PUNJAB

ABDUL JABBAR KHAN (CHAIRMAN) Messrs Zulfiqar Ali Toor and seven others have filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Additional Chief Secretary, Government of the Punjab, Civil Secretariat, Lahore and 22 others as respondents.

2. By virtue of this appeal, the appellants have ‑prayed that the impugned order, dated 15th December, 1981 and impugned seniority list be set aside and the appellants be declared senior to the contesting respondents Messrs S. M. Shuja and 21 others (respondents Nos. 2 to 23).

3. Brief facts of the case are that the appellants were selected for appointment as E. A. Cs. by the Public Service Commission on 4th August, 1973. They were appointed on different dates ranging between 16th February, 1974 to 4th March, 1974. The appellants for the purpose of seniority have divided the respondents into following batches :‑

First Batch : Respondents Nos. 2 to 6 who are shown at Serial Nos. 51 to 56 in the impugned seniority list and are selectees of 1973.

Second Batch : Respondents Nos. 7, 8 and 9 and they have been shown at Serial Nos. 57, 58 and 59 in the impugned seniority list. They were originally direct recruits of 1975 but were subsequently declared as Promotees and given promotion w.e.f. 10th July, 1974 through order, dated 5th March, 1977.

Third Batch : Respondents Nos. 10 to 23. They appear at Serial Nos. 60 to 73 in the seniority list. They are promotees from the rank of Tehsildars/Naib‑Tehsildars with the same date of promotion viz. 10th July, 1974.

As the appellants have been shown junior to these persons in the impugned seniority list, therefore, they have agitated their claim of seniority through this appeal.

4. We have heard the learned counsel for the appellants as well as learned counsel for the respondents and learned District Attorney and some of the respondents themselves so appearing before us and have perused the record of this case carefully with their assistance.

5. It has been submitted on behalf of the appellants that respondents Nos. 2 to 5 qualified P. C. S./S. Os. combined competitive examination some time in the year 1968. These respondents were, in the first instance, recommended by the Public Service Commission for the posts of Section Officers. Accordingly they were appointed as Section Officers in the year 1968. Subsequently however, they represented for their induction into P. C. S. (E. B.) on the basis of their position in the said competitive examination in September, 1973 and on the basis of their success in the P. C. S. Competitive Examination held in 1968. According to learned counsel for the appellants, as the respondents Nos. 2 to 5 were given clear understanding that they would be given seniority on the basis of competitive examination they are entitled to gain their seniority from the date they joined P. C. S. (E. B.). It has been argued that as these respondents have joined P. C. S. (E. B.) on 4th August, 1973, they are necessarily junior to the appellants. It has been argued that ,being direct recruits, their seniority inter se is to be determined on the basis of the principle of earlier and later selectees. Learned counsel for the appellant has claimed that the dates of joining in the case of the appellants was totally immaterial, as they are selectees of 4th August, 1973 and the respondents are selectees of September, 1973, the latter are junior to the appellants. With regard to the second batch, respondents Nos. 7 to 9, it has been submitted that the respondents were in the first instance, inducted into P. C. S. (E. B). through direct recruitment which was made as a result of a special examination conducted by the S. &. G. A. D. instead of Punjab Public Service Commission. Learned counsel has submitted that application of rule 5 (b), which was especially incorporated in the Service Rules of 1964, in order to regularize their direct recruitment was contrary to the provisions of existing rules, therefore, the benefit of this rule was not available to the respondents. It has been argued that their subsequent promotion from 10th July, 1.974, vide order dated 5th March, 1977, was unjustified as well as illegal as the appellants are direct recruits of 1973 and not 1974. With regard to the 3rd batch viz. Respondents Nos. 10 to 23 learned counsel for the appellant has addressed us at length and has submitted that they are promotees from the rank of Tehsildars and Naib‑Tehsildars from 10th August. 1974 and have been shown senior to the appellants on wrongly assumed basis that the appellants are recruits of 1974. Learned counsel has drawn our attention to the relevant provisions of rules and laws which regulate the seniority of promotees of 2nd and 3rd batches of the respon dents i. e. rule 9 of the West Pakistan Civil Servants (Executive Branch) Rules, 1964, as well as Punjab Civil Servants Act, 1974. Learned counsel for the appellants has also discussed at length section 7 of the Act and has submitted that the promotees shall count their seniority from the date of their regular promotion and as the date of promotion in all the batches is 10th July, 1974 and the date of selection of the appellants is 4th August, 1973, and the dates of their appointments range between 16th February, 1974 and 1st March, 1974, the appellants would be senior to both the batches. Learned counsel for the appellant has further submitted that section 23 of the Punjab Civil Servants Act, 1974, provides that all the existing rules should be deemed to be rules under the said Act only to the extent that these Rules were not inconsistent with the provisions of the Act. According to the learned counsel with the coming into force of new Act and new Rules, the old provisions as contained in rule 9 (3) of the West Pakistan Civil Services Rules, 1964, virtually stood repealed.

6. With regard to the preliminary objection raised by the learned counsel for the respondents that the appeal was time‑barred learned counsel for the appellants submitted that in the first instance the Government issued seniority list in the year 1979, against which the appellants filed representa tions on 19th June, 1979 and the said representation has now been rejected on 15th December, 1982, therefore, the appeal was within time.

7. On the other hand learned counsel for the respondents raised two legal objections against the maintainability of appeal by submitting that firstly the appeal was time‑barred and secondly the principle of Estoppel was starring in the face of the appellants, therefore, the appeal was liable to be dismissed on these scores alone. He has elaborated these two points by submitting that the appellants joined service in February, 1974 and since then a number of gradation lists, tentative seniority lists and seniority lists have been published and notified in the official gazette. The latest seniority list corrected upto 31st December, 1981, was based on the said previous seniority lists more particularly, the seniority list corrected upto 31st December, 1977 and 31st December, 1980, which were duly published and notified to all concerned. As the appellants failed to challenge these seniority lists since their induction into service, therefore, they are not entitled to challenge these seniority lists at this belated stage.

8. With regard to the principle of Estoppel, it has been submitted that the appellants have all along been accepting their seniority position as reflected in the periodical gradation lists and seniority lists duly published/ notified from time to time, they are estopped to challenge the latest seniority lists which is based on the said seniority lists which have attained finality. Reliance has been placed on 1980 P L C (C. S.) 293. It has also been argued that out of 8 appellants, appellants Nos. 3, 5 and 7 do not appear to have made any representation at all to the higher authorities, therefore, the appeal is barred by section 4 (a) of the Punjab Service Tribunals Act, 1974. According to the learned District Attorney even the representation of appellant No. 1, the same is against Gradation List as corrected upto 31st December, 1978, and he has failed to file any representation against the seniority list so impugned in the appeal.

9. With regard to the merits of the case, it has been submitted that the basis of the appeal is the selection of the appellants by the Punjab Public Service Commission in the year 1973 and the case of the appellants depends on the claim of being an early selectees. According to the learned counsel for the respondents, selection does not, in any manner, confer any vested right as it is only the appointment which is to be starting point of one's service because the Government is within its ambit to refuse or accept the recommendation of the Public Service Commission. Reliance has been placed on 1982 S C M R 971 in case No. 338/96 of 1975 and also on Habibur Rehman's case (P L D 1973 S C 144) and M. N. Rizvi's case (1977 S C M R 356).

10. With regard to the claim of the appellants that rule 9 (3) of the Punjab Civil Services (E. B.) Rules, 1964 stood repealed by coming into force of Punjab Civil Servants Act, 1974, it has been submitted that the same was absolutely hollow when analysed keeping in view both the rule 9 (3) of the Punjab Civil Services (E. B.) Rules, 1964 and section 7 (4) of the Punjab Civil Servants Act, 1974. According to the learned counsel for the respondents this issue came before this Tribunal in Appeal No. 362/359 of 1978 titled Ch. Kabir Ahmad Khan v. Government of the Punjab and when the matter went before the Supreme Court of Pakistan the judgment of this Tribunal was upheld. According to the learned counsel when the decision on this issue and the said decision has attained finality, the same cannot now be agitated by the present appellants.

11. We have given our anxious thought to the arguments so advanced by the parties and for the sake of bravity, would concisely reproduce the issue as under.

The claim of the appellants is that they Were appointed by the Punjab Public Service Commission in the year 1973, on different dates ranging between 16th February, 1974 and 1st Match, 1974 and it has been claimed that answering respondents Nos. 2 to 6 joined as Section Officers in the Punjab Secretariat in the year 1968, as a result of combined Competitive Examination held in 1967. However, on the representation they were appointed in the P. C. S. (E. B.) in September, 1973, but still their pre -integrating appointment in the P. C. S (E. B.) was illegal. In nutshell the case of the respondent vis‑a‑vis the appellants selected earlier on 4 th August, 1973, therefore, the appellants were entitled to higher seniority than the respondents. With regard to respondents 7 to 23 who were appointed on 10th July, 1974, whereas the appellants were appointed to service in February/March, 1974. As far as respondents Nos. 7‑23, the appellants seek to press into service the provisions of section 7 (2) of the Punjab Civil Servants Act, 1974.

12. We will first of all advert to the basic claim of the appellants which is sheet anchor of their case i.e. that they being selectee of 1973, they are entitled to seniority over the respondents. In this matter we have to fall back on 1982 S C M R 1971. In the said case the appellants claimed seniority from the date of approval of Public Service Commission but their Lordships of the Supreme Court of Pakistan, while upholding the judgment of this Tribunal were pleased to declare the law in the follow ing terms :‑ "the claim of the petitioners to have their appointments ante‑dated to the time when the Tehsildars were appointed or when their names were approved by the Public Service Commission is based on no provision of law or rule applicable to their case. In the absence of any provision of law or rule governing the situation they could not claim nor could the Service Tribunal within its powers ante‑date for the purpose of their seniority, the date of their actual appointment and give them seniority from a period when they were in fact not appointed to the post or service."

This judgment of the Supreme Court was based on the two earlier judgments of the said Court reported as P L D 1973 S C 144 and 1977 S C M R 365. Now the law on this point stands fully settled that selection is merely recommendations of the Public Service Commission which are advisory in nature and the Government is not bound to act upon the said recommendation. Mere recommendation or approval of the Public Service Commission to a post does not give rise to even right to appointment, which would be a starting point for the purpose of seniority. Even sec lion 7 (2) of Punjab Civil Servants Act, 1974, provides that a person can claim seniority only from the date of his regular appointment. This sec tion nowhere talks of selection. We have also taken into consideration the history of the case and find that the appellants appeared in 1972 competitive examination, when 10 posts had been advertised. The said posts were later increased to 25 but none of the appellants could be selected against 25 posts. It so happened that 10 posts had fallen vacant and this time the appellants were included in the list of recommendation of Punjab Public Service Commission and in case these 10 posts would not have fallen vacant the appellants would not have been appointed at all.

13. We, therefore, hold that the appellants cannot rank senior to the respondents 2 to 6 by virtue of their selection and respondents Nos. 2 to 6 being appointed earlier than the appellants, would rank senior to them. In this way the impugned seniority list as far as it pertains to respondents Nos. 2 to 6 cannot be interfered with.

14. With regard to the case of other respondents what we find is that the appellants are in fact claiming seniority under section 7 (2) of the Punjab Civil Servants Act, by claiming that rule 9 (3) of the P. C: S (E. B.) Rules, 1964, must give way to section 7 (2) of the Punjab Civil Servants Act, 1974.

15. We have carefully examined section 7 (2) of Punjab Civil Servants Act, 1974 as well as rule 9 (3) of the P. C. S. (E. B.) Rules, 1964. We have also looked into section 7 of the same Act as well as section 2 (G). It is interesting to observe that Rules of 1974 were issued on 28th August, 1974 whereas both the groups i.e. appellants and respondents bad already joined service. We have also taken into consideration rule 8 (3) of the 1974 Rules, which has the effect of legitimating the provisions of rule 9 (3) of 1964 Rules. Unless and until we find that there is in consistency between section 7 (2) of the Act, 1974 with rule 9 (3) of 1964 Rules, rule 9 (3) of 1964 Rules, will be applicable in the case of respondents Nos. 7 to 23. It will be useful to observe at this stage that the respondents Nos, 7 to 23 were inducted into service before the promulgation of the Act of 1974 and Rules made there under, therefore, the same cannot be applied retrospectively Our observation for this proposition is based on law as based in 1977 S C M R 509. Rule 8 (3) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, protects the rights of the civil servants to seniority on the date of promulgation of said rules and not earlier. We will reproduce the said Rule as under :‑‑

"Notwithstanding the provisions of this rule, the seniority lists already prepared in accordance with the rules applicable immediately before the commencement of these rules shall be construed as seniority lists for the respective new grades in respect of persons already in service and amendments therein shall continue to be made in accor dance with those rules to settle inter se seniority disputes among them."

In this manner we are of the considered opinion that the application of rule 9 (3) has been correctly made in case of present respondents. This matter came before us to determine the seniority of direct recruits vie‑a‑via the promotees in Appeal No. 362;359/ of 1978 Ch. Kabir Ahmad v. Govern ment of the Punjab. While dismissing the appeal, we held as under:‑ "in these cases the seniority of these respondents (i.e. promotees) was determined in the light of rule 5 of P. C. S. (E. B.) Rules, 1964, as being promotees from the rank of Tehsildars. The Act (or Rules of 1974) of 1974 does not provide anything under which respondents could be put to disadvantageous position because the same do not provide anything for the fixation of seniority of direct recruits vis‑a‑vis `promotees', rule 9 (3) of P. C. S. (E. B.) Rules, 1964, does not hold good in their case."

Our this judgment was assailed by way of two separate C. P. S. L. As. bearing Nos. 479/1981 and 589/1981. The petitions were dismissed by the Supreme Court of Pakistan that dismissal of appeal by Tribunal was not open to any exception.

16. With regard to the point relating to limitation as well as estoppel by the respondents, we have considered the same as forceful. 1t has been brought on the record that since 1974 a number of Gradation Lists, seniority lists and tentative seniority lists were published and notified in the official Gazette and what has been stated in those lists has been so reflected in the impugned seniority list, it is also fully established that none of the appellants challenged those seniority lists since their induction into service, therefore, we hold that their present appeal would be time‑barred.

17. Similarly the law of estoppel will also come into play against them which is co‑related with their first behaviour with regard to their failure to challenge those seniority lists. In this manner they have accepted the position from time to time which was assigned to them earlier and kept quiet. In this manner the law laid down in 1980 P L C (C. S.) 293, would be attracted in their case.

18. In view of the above detailed analysis of the case, we do not find any merit in this appeal and dismiss the same. However, there will be no order as to costs.

A. E. Appeal dismissed.