CHAIRMAN, PAKISTAN RAILWAYS, LAHORE vs MUHAMMAD LATIF AND OTHERS

ORDER

' SHAFIUR RAHMAN, J.-The petitioner seeks leave to appeal under Article 212 (3) of the Constitution against an order of the Service Tribunal dated 25-7-1977 determining the rule of seniority applicable to the respondents.

2. The seniority as Clerk Grade-II (Upper Division Clerk) was required to be fixed as between respondent No, 1, a promotee and respondent No, 2, a direct recruit. The respondent No 1 was promoted to this grade on 12-5-1958 and confirmed as from 17-8-1966. Respondent No, 2 joined the grade on 27-4-1964, was confirmed as from 1-5-1965 but given the notional seniority from 26-3- 1954. The rule of seniority applied by the petitioner with reference to fixation of notional date of appointment going earlier to the date of entry into the grade of the direct recruits was the subject- matter of determination by the Punjab Service Tribunal. The interpretation and determination of the seniority by that Service Tribunal was available to the petitioner but the benefit of the rule as interpreted by the Tribunal was restricted by the petitioner to employees who were parties to those proceedings. On rejection of the representation of respondent No, 1 to afford him a similar benefit as against respondent No, 2 he approached the Service Tribunal. The petitioner objected that their seniority stood determined by an order of 1967 and respondent No, 1 could not repaginate the matter. The Tribunal reaffirmed the rule of seniority as determined by the earlier Service Tribunal and directed that it should be followed in determining the seniority of the respondents. Hence this petition.

3. The learned counsel for the petitioner contended that the matter was past and closed having been determined in 1967 and the petitioner not agitating against it. He could not be considered to be a person aggrieved by the determination of seniority in the manner in which it had taken place.

He could not for the same reason be given the benefit of litigation to which he was not a party. As regards the merits of the contention of the respondents, it is stated that 80 per cent of the posts were reserved for promotion and 20 % for direct recruitment. Direct recruitment could not be made as and when the vacancies occurred. Whenever the direct recruitment was made the notional seniority was related back to the date when the vacancy occurred ignoring that the direct recruit was not in service in the grade at that time. This principle, according to the learned counsel. For the petitioner, had sanctity and it had to be given legal effect.

4. We find that no specific rule had been cited in support of the contention made by the petitioner.

The rule with regard to the confirmation reproduced in the petition for leave provides that "confirmation will be made from the date from which an individual started working against a permanent vacancy" subject to satisfactory completion of probation. It is said that to meet the requirement of this rule of confirmation "another notional earlier date is given which corresponds to the date when the vacancy for direct recruitment occurred." It is clear that the rule does not require it. The earlier decision with regard to the same establishment given by the competent. Tribunal was determinative of the rules to be applied. The benefit of it could not be denied to respondent No, 1 on the sole ground that he was not a party to the litigation because it was declaratory of the rule of seniority applicable to the establishment. The respondent had sought it from the department correction of the seniority in accordance with rules and the refusal of the petitioner afforded him a good ground for preferring an appeal to the Tribunal which he did successfully. We find no merit in the petition which is dismissed.