MUHAMMAD IQBAL FAROOQI Versus SECRETARY IRRIGATION & POWERS DEPARTMENT, ETC.

ORDER

1. S. A. MAHMOOD (CHAIRMAN). ‑This is an appeal under section 8(1) of the Punjab Civil Service (Appellate Tribunal) Ordinance, 1970 by Mr. Muhammad Iqbal Farooqi, appellant: who is now officiating as Assistant in the office of the Chief Engineer Irrigation, Lyallpur, praying that he may be declared senior to Messrs Muhammad Islam. Mushtaq Ahmad and Riaz Hussain Shah, respondents Nos. 3‑5, that his original seniority may be restored as also the actual date of his pro motion for purposes of seniority and that he may be granted such other relief as may be deemed fit by the Tribunal. This appeal was accepted by the Tribunal by cur order dated 10th January 1972, but on a Writ Petition filed by Mr. Muhammad Islam respondent No. 3, our order was set aside on the ground that Mr. Bashir Ahmad Khan, learned Member, having expressed his opinion on a relevant question as Deputy Secretary (Regulations), could not sit as a Member of the Tribunal, having been disqualified on the ground of bias, as is understood in law, to hear and decide this appeal. The appeal having been remanded to the Tribunal for fresh decision, this appeal has been heard by the Chairman and one of the Members.

2. Mr. Muhammad Iqbal Farooqi, appellant is present in person. No one appears on behalf of respondent No. 1. Haji Habib‑ur‑Rehman, Super intending Engineer (Headquarters), respondent No. 2 is present in person. Mr. Munir Ahmad, Advocate, appears for respondents Nos. 3‑5. Respondent No. 3 is present in person also.

3. The seniority in dispute in this case is in the rank of Assistant.

4. Mr. Muhammad Iqbal Farooqi, appellant having been recruited as Junior Clerk, in the Thal Circle of the Irrigation Department at Mianwali on 27‑7‑47, was confirmed by the Director of Irrigation Research, Lahore from 27‑7-49. He was transferred ors 5‑4‑48 to the Office of Director of Irrigation Research, Lahore. On 31‑10‑51, he was transferred to the Punjab Irrigation Branch Secretariat as Clerk Grade II and was confirmed from 6‑1‑52. He was promoted as Senior Clerk in the I. B. Secretariat from 6‑8‑53. On integration with effect from 14‑10‑55, the Office of Chief Engineer, West Pakistan, as Head of an Attached Department, alongwith nine officers f Deputy Chief Engineers as Subordinate Offices were set up. On 9‑1‑55, the appellant was transferred, with effect from 14‑10‑55. to the Office of Deputy Chief Engineer, Lyallpur, where he joined on 21‑11‑55. The latter dated 22‑1f‑55 shows that actual distribution of the staff, internal changes and transfers remained the responsibility of the Head of the Attached Department. i.e. the Chief Engineer in this case. The appellant was promoted as Assistant by the Chief Engineer on 21‑8‑56. He claims that as there existed a clear vacancy of Assistant in the Office of Deputy Chief Engineer, Lyallpur, he should have been promoted substantively from 14‑10‑55, but in the seniority list as on 14‑10‑55, polished on 1‑5‑69 he was placed at Serial No. 7 amongst Senior Clerks. It may also be mentioned that the office of Deputy Chief Engineer, Lyallpur was abolished on 28‑2‑59 and was merged with the office of Deputy Chief Engineer, Lahore. The appellant joined the Lahore office on 14‑11‑60. In October, 1960, the office of Deputy Chief Engineer, Lyallpur was reopened and the appellant was transferred to the office of Chief Engineer, West Pakistan, on 22‑11‑60, where be remained upto 30‑4‑62. On 1‑5‑62, as a result of reorganization of the Irrigation Department, creating Lahore, Sargodha and Bahawalpur Regions, the appellant was posted in the Office of Chief Engineer, Sargodha Region, at Lyallpur.

5. On 23‑8‑67, permanent allocation of officials to the three regions was made, and a joint seniority list for the three regions was published. This seniority list was challenged in the Civil Court by the officials of the Lahore, and Sargodha Regions. The suit not having been resisted by the Provincial Government, who did not file a written statement, was decreed and the seniority list of 1969 was declared null and void. In this allocation, the appellant was allocated to the, Sargodha Region. On 1‑5‑69 three orders were made. The first order related to the issue of a seniority list, region‑wise, as on 14‑10‑1955, 30‑4‑62 and 30‑4‑69. In these seniority lists, the appellant was shown at serial No. 27 amongst Senior Clerks as on 14‑10‑55, anal at Serial No. 10 amongst Assistants as on 30‑4‑62. The second order related to allocation of officials to the various regions. The appellant was again allocated to Sargodha Region. The third order assigned presumptive retrospective dates of promotion to respondents Nos. 3‑5. Mr. Muhammad Islam was assigned 14‑10‑55 as against 7-1‑57, which was his actual date of promotion. Mr. Mushtaq Ahmad was assigned 16‑6‑56 as against 7‑1‑58, which was his actual date of promotion. Mr. Riaz Hussain Shah was assigned 25‑10‑56 as the presumptive date of promotion as against 7‑1‑58 which was his actual date of promotion. In the case of appellant however, he was assigned 1‑3‑57 as the date of presumptive promotion, when he had actually been promoted on 24‑8‑56. Surprisingly, therefore, in his case, the date of promotion assigned to him was subsequent to his actual date of promotion. The dates assigned to respondents other than Mr. Riaz Hussain Shah are earlier than the date assigned to the appellant as well as the date of his actual promo tion as Assistant. The presumptive date of promotion assigned to Mr. Riaz Hussain Shah, respondent, being 25‑10‑56 is later than the actual date of promotion of the appellant. It is argued on behalf of the appellant that the assigning of date of promotion to the appellant later than the date of actual promotion was not valid or competent and the assigning of a subsequent date of promotion to the appellant should to set aside.

6. Mr. Muhammad Islam, respondent No. 3. having been appointed in the Punjab I. B. Secretariat as Clerk Grade II from 1‑10‑48, was confirmed from 18‑1‑52. He was promoted as Senior Clerk on 1-3‑54 and as Offg. Assistant by the Chief Engineer, West Pakistan on 7th November, 1957. He remained in the I. B. Secretariat of the Punjab Province from 1‑10‑48 to 13‑10‑55. From 14‑10‑55 to 16‑5‑62, he was posted in the Office of the Chief Engineer, Irrigation West Pakistan. From 27‑5‑62 to 30‑11‑65 he was posted in the office of Chief Engineer, Sargodha Region. From 1‑12‑65 to 31‑3‑68, he was posted on deputation to the Office of Chief Engineer, Remodelling Organization. From 1‑4‑68, he was posted in the Office of Chief Engineer, Sargodha Region. Now, he is posted to the Office of Chief Engineer, Central Irrigation Region, Lahore, from 9‑7‑73. In the regional reorganization from 14‑10‑55, he was shown in the Office of Chief Engineer, West Pakistan. In the allocation in connection with the reorganization of 1‑5‑62, he was allocated. In 1967 and in 1969 to Sargodha Region. In the seniority list as on 14‑10‑55 and 1‑5‑62 issued on 1‑5‑69, he figured at Serial No. 12 in the grade of Senior Clerk and at Serial No. 59 in the grade of Assistant. In the order of 1‑5‑69, he was presumptively assigned 14‑10‑55 as the pro forma date of promotion as Assistant, as already stated.

7. Mr. Mushtaq Ahmad, respondent No. 4, was appointed in the Punjab I. B. Secretariat as Clerk Grade‑II on 1st November, 1949, and was confirmed from 16‑5‑53. He was promoted as Senior Clerk from 8‑10‑54 and as Offg: Assistant from 7‑1‑58. From 21‑11‑49 to 13‑6‑55, he remained in the Punjab I. B. Secretariat. From 14‑10‑55 to 23‑5‑60, he was posted in the Office of Chief Engineer, West Pakistan and from 24‑6‑60 to 10‑11‑60, in the Office of Chief Engineer, Lahore Region. From 11‑11‑60 to 22‑11‑51, he was posted in the Office of Deputy Chief Engineer, Lyallpur. From 23‑11‑61 to 30‑4‑62 he was posted in the Office of Chief Engineer, West Pakistan. From 1‑5‑62 to date, he is posted in the Office of Chief Engineer, Irritation, Sargodha Region. By order of 1‑5‑59, he has green assigned 16‑6‑56 as the presumptive date of his promotion as Assistant. In the seniority list published on 1‑5‑69, he was shown at Serial No, 17 amongst Senior Clerks as on 14‑10‑55 and at Serial No. 64 amongst Assistants as on 30‑4‑62.

8. Mr. Riaz Hussain Shah, respondent No. 5, having been recruited as Clerk Grade if, in the old Punjab I. B. Secretariat on 29‑10‑49 was confirmed from 17th May, 1953. He was promoted as Senior Clerk from 30‑10‑54 and as Assistant by the Chief Engineer, West Pakistan from 7‑1‑58. From 29‑10‑49 to 13‑10‑55 he remained to the Punjab I. B. Secretariat, and from 14‑10‑55, he remained in the Office of Chief Engineer, Wear Pakistan. From 1‑5‑62 he was posted in the Office of Chief Engineer, Flood Control against an ex‑cadre post of Assistant. In 1967, he was allocated to the Lahore Region, but in 1969, he was allocated to the Sargodha Region, where he did nit actually join. In the order of 1‑5-69 he was assigned 25‑10‑45 as the presumptive date of promo tion as Assistant. In the seniority list published on 1‑5‑69, he was placed at Serial No. 18 in the grade of Senior Clerk as on 14‑10‑55 and at Serial No. 65 amongst Assistants as on 30‑4‑62. He was posted to the Office of Chief Engineer, Central Region, Lahore, from 30‑7‑73.

9. The appellant does not challenge his own allocation to Sargodha Region. He challenges the validity of assigning retrospective presumptive dates of promotion of respondents No. 3‑5 and subsequent date of promotion to himself by the order of 1‑5‑69. He claims that their inter se seniority must be determined oar the basis of actual dates of promotion, which make him senior to respondents Nos. 3‑5. The presumptive dates of promotion assigned to respondents Nos. 3‑5 are explained on the plea that these dates were assigned on the basis of the occurrence of vacancies to the regions to which the parties were assigned. The post‑dating of the date of promotion of the appellant is not defended by the learned counsel for the respondents.

10. Though the Government has power to assign a date of promotion with retrospective effect, it is not within its power to post‑date a promotion from that of actual date of promotion, because on the making of an order of promotion and the taking over of an official in a higher grade, rights are created and these cannot be taken away by the post‑dating of actual prom Lion. We, therefore, set aside the order of 1‑5‑69 by which the date promotion of the appellant was post‑dated from 24‑8‑56 which was his actual date of promotion to 1‑3‑57, which was a later date.

11. As regards the assigning of retrospective dates of promotion to respon dents Nos. 3‑5 on the ground of occurrence of vacancies in the regions on regional basis the learned counsel for the respondents relies on paragraphs 4, 10 and 11 of the Integration Circular as well as the Delegation of Powers Rules, 1958, by which powers of appointments and promotions of the ministerial establishment were delegated to all the Deputy Chief Engineers and Chief Engineer, West Pakistan, in their respective offices. We have found that though the Integration Circular required the setting up of regional offices on regional cadres, the postings, transfers and promotions were actually made by the Chief Engineer, West Pakistan, so that cadres remained joint in practice. We have, therefore; held that promotions had to be made on basis of joint seniority. We have made a distinction between pre‑integration and post‑integration employees in the case of Mr. Rashid‑ud‑Din (Case No. 181/108 of 1971) decided today, in the case of Mr. Akbar Ali (Case No. 183/109 of 1971) decided today, and in the case of Mr. Inayat Ali Sajid (Case No. 174/101 of 1971) decided on 20‑1‑72.

12. In the seniority list of 1‑5‑69, the appellant has been shown junior to respondents Nos. 3‑5 because his promotion sae post‑dated by order of 1‑5‑69. This post‑dating of his date of promotion has been set aside by us. We, therefore, set aside the seniority list of 1‑5‑69 and direct that it be prepared afresh by giving due seniority to the appellant in the rank of Assistant. He claims in this case that he should have been promoted as Assistant from 14‑10‑55, in any case, since a char vacancy in Lyallpur region, existed, in which the appellant should have been promoted substantively. This question should be examined by the competent authority, and if it is found that the substantive vacancy of Assistant existed as is claimed by the appellant, he should be assigned promotion or presumptive date of promotion from that date if due to him. It is pointed out that Mr. Taj Mohammed was erroneously assigned the vacancy of Assistant in Lyallpur Region. The appellant claims that this vacancy should have been given to him from that date.

13. In preparing the seniority list afresh we direct that the question of priority of assigning retrospective dates of promotion to respondents Nos. 3‑5 may also be examined and decided afresh. The appellant and respondents Nos. 3‑5 have come together in the same cadre from 1‑5‑62 and have been allocated to the same cadre. That is how the question of their Inter se seniority has assumed importance. When they have come together by reorganization, their inter se seniority is to be determined by the date of continuous appointment which is the rule of seniority to be applied in the case of reorganization.

14. We accept the appeal as stated above and direct that the question of assignment of retrospective date of promotion to the appellant and respon dents Nos. 3 ‑5 be decided afresh and seniority assigned to the parties in accordance with the rules applicable to the case.

15. The parties will bear their own costs. The security deposited by the appellant shall be refunded to him.