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Petitioner: Ch. MUHAMMAD YAQUB SINDHU, DIRECTOR, CO-OPERATIVE INSTITUTE OF MANAGEMENT AND OTHRRS. VS Respondent: SECRETARY TO GOVERNMENT OF WESPAKISTAN,
Court Name: Service Tribunal Judge(s): S. A. Mahmood, Ashfaq Ali Khan Title:Ch. MUHAMMAD YAQUB SINDHU, DIRECTOR, CO-OPERATIVE INSTITUTE OF
MANAGEMENT AND OTHRRS. vs SECRETARY TO GOVERNMENT OF WESPAKISTAN, Case No.: Date of Judgment:1971-01-18 Reported As: 1971 P LC 31 [C.S.T] Result: N/A Judgment ORDER S. A. MAHMOOD, (CHAIRMAN).-These twelve appeals by Ch Muhammad Yaqub Sindhu, Ch. Muhammad Iqbal Khan, Syed Nazir-ul-Hassan, - Mr. Zahoor-ul-Haq, Mr. Ghulam Yasin, Mr, Rashid Ahmad Hashmi, Mr. Abdul Rashid, Mr. Gul Nawaz -Khan, Mufti Muhammad Saad Ullah, Sh. Muhammad Mukarram, Ch. Nazir Ahmad and Mr. Mushtaq Hussain Qureshi will be disposed of by one order as they arise out of similar facts and raise for decision similar questions. These appeals are in essence directed against the order of Registrar, Co-operative societies dated 26th April 1969 made on the six representations of respondents 3 to, 8 where by the latter were made senior to the appellants and the order of the Secretary to Government of West Pakistan dated 8th July 1969, rejecting the representa--tions of six of the appellants (Messrs .Gul Nawaz, Ch. Rashid Ahmad Hashmi, Zahoor-ul-Haq. Nasir-ul-Hassan and M. S. Mukarram) against it and maintaining the order of the Registrar, CO-operative Societies. As out of respondents in these appeals, Mr. Manzour Ahmad Sethi has been assigned to the N.W. F. P. and M/S. Hamza Ali Mangrio; Ashfaq Hussain, Ismail Omer, Masud Mirza and S. A. Wahid Naqvi have been assigned to the Sind Province and as Mr. Abdul Jamil Siddiqui has died, their names have been struck off from the list of respondents id all the appeals, in which they were respondents. The contesting respondents in these appeals remain the province of the Punjab, and the Regis-- trar. Co-operative Societies, who are represented by Mr. A. G. Humayyun, Government Pleader Syed Mumtaz Hussain Shah, Mr. Faseeh-ud-Din Khan and Mr. Hamid Ahmad, who were represented by Mr. Fazle Mahmood, Advocate and Mr. Naik Muhammad Ropal and Mr. Rafique Ahmad Khan, who
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were represented by Mr. Munawar Akhtar, Advocate on behalf of Mr. Manzoor Ahmad Sethi, Mr. Maqsood Hasan, Advocate appeared before us. He questions the jurisdiction of this Tribunal to adjudicate on his seniority. As he has been assigned to the Province of N.-W. F. P. and he no longer remains within the jurisdiction of this Tribunal, which has since been constituted as a Punjab Tribunal, his name was decided to be struck off from the list of respondents. Syed Mumtaz Hussain Shah, Mr. Faseeh-ud-Din Khan, Mr. Naik Muhammad Ropal, Mr. Rafique Ahmad. Khan and Mr. Hamid Ahmad who remain as the contesting respondents are direct recruits, who were placed on probation as Assistant Registrars on 1-7-1962, after undergoing two years successful training on appointment as trainees. They were recruited through the Public Service Commission as a result of a competitive examination held for recruitment to the P. C. S. The appellants are promotees from the rank of Inspectors Co-operative Societies. The contest thus lies between promotees and direct recruits. The important question in issue for the determination of the inter se seniority of the direct recruits and the appellants as Assistant Registrars is whether clause (a) (b) or (c) of sub-rule (2) of rule 9 of the West Pakistan Co-operative Societies Service (Class II) Rules, 1963 is; attracted. The Service histories of the appellants, who are all promotees may first be stated:- Ch. Muhammad Yaqub Sindhu was recruited as Inspector, Co-operative Societies on the 28th of February 1948 and was confirmed in 1951. He was promoted as Assistant Registrar, Co-operative Societies (in Class II) on a purely temporary basis until further orders on 13-3-1958 subject to the approval of the Public Service Commission. Approval of the Public Service Commission for his appointment in officiating/temporary capacity until further orders from the date of taking over as Assistant Registrar, was notified on 28th January 1959. He was confirmed as Assistant Registrar on 11/12th November 1970. He was, promoted as Deputy Registrar, Co-operative Societies (in Class I) on 7th October 1968, but was reverted on 23rd 'August 1969. He has been re-promoted as Deputy Registrar on a purely ad hoc basis on 24th January 1970. The appellant claims seniority over the respondent direct recruits,' on the ground that he having been promoted as Assistant Registrar in a substantive capacity from 13-3-58, he is, under rule 9 (2)(c), entitled to rank senior to them. He claims seniority on the basis of rule II of the Punjab Provincial Co-operative Societies (Class II) Rules, 1950. which provide date of confirmation as rule of seniority, In the alternative he relies on rule 9 (2)(c) of the West Pakistan Co-operative Service (Class It) Rules, 1963. Ch. Muhammad Iqbal Khan having joined as Inspector Co--operative Societies on 20ta August 1948, was confirmed on 1-3-52. On 27th April 1959, he was promoted as Assistant Registrar, Co- operative Societies (in Class II) for six months subject to the approval of the Public Service Commission and took over on the 29th April 1959. On 10th November 1959, approval of the Public Service Commission for his appointment to vacancies in Group Sub-Cadre `C' was notified. He- was confirmed as Assistant Registrar on 11/12th November 1959. He claims seniority over the direct recruits on the basis of substantive appointment as Assistant Registrar w.e.f. 29th April 1959, under rule 9 (2)(c) of the 1963 Rules. Syed Nasir-ul-Hassan, Assistant Registrar, having been appointed as Inspector Co-operative Societies on 19-8-1949, was confirmed on 19-8-1953 from 17-6-1951. On 29-4-1959, he was promoted as Assistant Registrar (in Class II) for six months subject to the approval of the Public Service Commission. On 10th November 1957, he was declared, suitable with the approval of the Public Service Commission to be appointed as Assistant Registrar in vacancies in Group Sub- Cadre 'C'. On the same day his promotion, posting and transfer was ordered as a temporary measure. He was confirmed as Assistant Registrar w.e.f. 1-1-1967 on 11/12th November 1970. He claims seniority over direct recruits on the strength of rule 9 (2)(c) of the 1963 Rums on the basis of substantive appointment since 29-4-1959.
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Mr. Zakoor-ul-Haq, having been appointed as Inspector Co--operative Societies on 29-6-1949, was confirmed w.e.f. 6-2-1951--He was promoted as Assistant Registrar in a purely temporary capacity on 22-5-1958 and took over on 23rd May 1958. On 28th January 1958 the approval of the Public Service Commission to his appointment as officiating/temporary Assistant Registrar w.e.f. 23rd May 1958 was conveyed. On 11/12th November 1970, he was confirmed as Assistant Registrar w.e.f. 1-1- 1957. He also relies on rule 9 (2)(c) of the 1963 Rules for claiming seniority over the direct recruits on the basis of substantive appointment w.e.f. 23-5-58. Mr. Ghulam Yasin was recruited as Inspector, Co-operative Societie3 on 21-8-1949 and on 19-8- 1953 was confirmed w.e.f. 17-1-1952. He was promoted as Assistant Registrar on a purely temporary basis until further orders on 8-9-61 and took over on 12-9-1961. On 3-3-1962, the approval of the Public Service Com mission for his appointment as Assistant Registrar in vacancies in Group Sub-Cadre 'C' was intimated. He was assigned seniority above Ch. Iqbal Muhammad Khan in the batch selected b the Commission in October 1959 and granted pro form promotion on 9-5-1968 w.e.f. 29th April 1959, the date on which his junior Ch. Iqbal Muhammad Khan was promoted. He was confirmed as Assistant Registrar w.e.f. 1-1-1967 on 11th/12th November 1970. On his behalf also reliance is placed on rule 9(2)(c) of 1963 Rules to claim seniority, over the direct recruits on the basis of substantive appointment from 12-9-1961. Mr. Rashid Ahmad Hashmi, having been appointed as. Inspector, Cooperative Societies op 28th June 1949 was confirmed w.e.f. 6-2-1951. He was promoted as officiating Assistant Registrar (in Class II) vied Mr. Mushtaq Amad, who had proceeded on tour. He took over on 23rd May 1958. He was confirmed as Assistant Registrar on 10th/11th November .1970 w.e.f. 1-1-67. He has been promoted us ad hoc Deputy Registrar on 9-10-70. He has been, placed senior to Mr. Zahoor-ul-Haq on his representation. Mr. Gul Nawaz Khan, having been appointed as Inspector Co-operative Societies on 6-3-1948 was confirmed w.e.f. April 1950. He was promoted as Assistant Registrar (in Class II) in a temporary, capacity until further orders on 8-3-1958 subject to the approval of the Public Service Commission. He took over on 13th March 1958. On 28th January 1959 approval of the Public Service Commission to his promotion as officiating/ temporary from the date he took over as Assistant Registrar and until further orders seas notified on 11/12th November 1970, he was confirmed as Assistant Registrar w.e.f. 1-7-1965. He was promoted as Deputy Registrar w.e.f. 1-2-1967. Mufti Muhammad Saad Ullah Khan having beers recruited as Inspector, Co-operative Societies on 27-6-1949 was confirmed w.e.f. 16-6-1952. He was also appointed as Co-operative Marketing Officer which was a special Gazetted post. On 10-11-1959, he was notified as having been approved by the Public Service Commission for promotion as Assistant Registrar against vacancies In Group Sub-Cadre 'C' and appointed in a purely temporary capacity as Assistant Registrar on the same day. Sh. Muhammad Mukarram, having been appointed as inspector Co-operative Societies on 4-7- 1949, was confirmed w. e. f. 16-4-1952. On 10-11-1959,approval of the Public Service Commission for his appointment as Assistant Registrar in a vacancy in group sub-cadre 'C' was noti--fied and his order of promotion was made on the same day as a purely temporary arrangement. He took over on 19-10-1959 he has not yet been confirmed. He also claims seniority over recruit under rule 9(2) (c) on the basis of substantive appointment as Assistant Registrar from10-11-1959. Ch. Nazir Ahmad having been appointed as Inspector, Co-operative societies on 5-7-1949, was confirmed from 23rd April 1952. On 10-11-1959, the approval of the Public Service promotion to a vacancy of Assistant Registrar in sub-cadre 'C' was notified and he was promoted on the same day in a purely temporary arrangement. As he was deputation to village Aid Administration, he took over as Assis--tant Registrar on 16-7-1960. He is not yet confirmed. He claims seniority as
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Assistant Registrar over the direct recruits under rule 9(2)(c) on the basis of substantive appointment w. e. f. 10-11-1959. Mr. Mushtaq Hussain Qureshi, having been recruited as Inspector Co-operative Societies on 27-6- 1949, was confirmed w. e. f. 28-2-1953. He was promoted as Assistant Registrar in a purely temporary capacity on 2-8-1959. On 10-11-1959, he was notified as approved by the Public Service Commission as being suit--able for promotion as Assistant Registrar in a vacancy in Group Sub- Cadre 'C'. He was promoted as Officiating Assistant Registrar w. e. f. 2-3-1960 and allowed to remain on deputation with the Village Aid Administration as Development Officer. The circumstances, in which the direct recruited respondents were recruited as Assistant Registrar may now be stated, as it is necessary to determine for the purposes of application of clause (a) (b) or (c) of rule 10, whether they were recruited to substantive or temporary vacancies, though it must be conceded that ostensibly they were assigned temporary vacancies, when they were selected for appointment as Assistant Registrar and placed on training from 1-7-1960 and if the determining factor for seniority be the nature of vacancies provided at initial recruitment of direct recruits and promotion of promotees, then the latter are all senior to the respondents, as their dates of promotion are earlier, since both were provided temporary vacancies. Rule 5(2) of the Punjab Provincial Co-operative Service (Clause II) Rules, 1950 provided that not less than 2, 33 and 1/3 per cent of the vacancies of Assistant Registrars shall be filled by direct recruitment and the remainder by promotion. On integration, however, in the integration letter dated 25th November 1955, the ratio of direct recruits and promotees was fixed at 50 : 50. Therefore, 50 per cent of the vacancies in West Pakistan had to be filled by promotion and 50 per cent by direct recruitment. The Registrar, Co-operative Societies originally wrote to the Secretary to Government of West Pakistan Social Welfare and Local Government Department on 14th September 1956 for recruiting three Assistant Registrar directly through the West Pakistan Public Service Commission. On 1st January 1958, when he again wrote to the Secretary to the Government of West Pakistan, he required that the West Pakistan Public Service Commission may be moved to select 7 Assistant Registrar candidates instead of three originally suggested and the requisi--tion form submitted by him earlier may be amended accordingly. He explained that the earlier requisition for recruitment of three direct Assistant Registrar candidates for vacancies likely to occur in group sub-cadre 'C' was being modified and recruitment of 7 candidates was being suggested, because the vacancies likely to occur in the Province of West Pakistan during the period ending December 1959, were going to be 20, out of which 9 had to be earmarked for direct recruits, and a request for recruiting seven officers was being made, and two vacancies for direct recruits were being carried over, so that a reasonable number of direct recruit is taken every year. He pointed out that this would necessitate creation of 7 temporary posts instead of three to accommodate the seven directly recruited Assistant Registrars during the two years period of training. In the requisition form, forwarded by the Registrar to the Secretary to Government of West Pakistan the nature of the appointment was described as a temporary, likely to be made permanent and it was mentioned that the selected candidates would have to execute an agreement bond binding themselves to serve the Co-opera--tive Department, for at least five years after completion of their training or to refund the amount of pay and allowances drawn by them during the period of training in case they left the department earlier. The pay admissible during the period of training was Rs. 210 with usual allowances in the scale of Rs.250-20-450/25- 600/700. The prospects of promotion for trainees was indicated as appointment to the permanent cadre of Assistant Registrars, Co-operative Societies when the Govern--ment notified the West Pakistan Public Service Commission that 7 posts of Assistant - Registrars, Co-operative Societies were to be filled through the Public Service Commission, the West Pakistan Public Service Commission issued a modified advertisement intimat--ing that 7 instead of 3, posts of Assistant
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Registrars of Co-opera--tive Societies may also be filled on temporary basis for a period of one year on the basis of the result of West Pakistan Civil Services (Executive Branch) Competitive Examination to be held in 1958. Seven persons namely Syed Mumtaz Hussain Shah. Mr. Manzoor Ahmad, Mr. Faseeh-ud-Din Khan, Malik Nek Mohammad Iqpal, Mr. Rafique Ahmad Khan and Mr. Hamid Ahmad respondents and Mr. Hassan Abbas Kazmi were selected for appointment as Assistant Registrar candidates for undergoing training. Their names are mentioned in the order of merit except that Mr. Hassan Abbas Kazmi was at serial No. 2. Letters of appointment issued to them indicated that they were selected as candidates for temporary posts of Assistant Registrars and required them to execute an agreement each binding themselves to serve the Co-operative Department for at least five years after the successful completion of their training for two years. They had to pass the departmental examination. After completion of the training, they were to be put on probation for two years as Assistant Registrars. Their service could be terminated at one month's notice on either side and they were to be governed by the new rules when finalized. Thus there can be no doubt that the directly recruited respondents are governed by, and their seniority has to be determined in accordance with, rule 9 of the West Pakis--tan Co-operative Service (Clause II) Rules, 1963. The six directly recruited respondents accepted the appointment, and were notified in the West Pakistan Gazette of 15th July 1960, as having been selected for temporary posts of Assistant Registrars and to have joined for training in the West Pakistan Co-operative Training Institute on 1-7-1960 when the six directly recruited respondents completed their training successfully on 19-6-1962, they were posted as probationer Assistant Registrars, Co-operative Societies w. e. f. 1-7-1962. To be precise, in the posting orders, dated 19th June 1962, Messrs Malik Naik Mohammad Ropal, Mumtaz Hussain Shah, Rafique Ahmad, Faseeh-ud-Din Khan and Hamid Ahmad were described as probationers. Again in the posting order dated 30th June 1962, Messrs Manzoor Ahmad, Malik Naik Mohammad Ropal, Mumtaz Hussain Shah and Hamid Ahmad were described as probationers. This was in accordance with the conditions on which they were selected i.e. that after the completion of their training, they would be on probation for a period of two years. The respondents claim appointment to substantive vacancies from 1-7-1962, the date on which they were posted as probationer Assistant Registrars, Co-operative Societies. On 15th October 1969, the directly recruited respondents were confirmed against substantive vacancies as follows:- Though the above confirmation order indicates the vacancies against which the directly recruited respondents have each been confirmed, and there should, therefore, be no dispute about it, it has been vehemently argued on behalf of the appellants that no vacancies were available for their confirmation from 1-7-1962 because all the vacancies were filled by promotees and no vacancy was actually available for the confirmation of the respondents. It is, therefore, urged that, having been provided with temporary vacancies, these respondents cannot claim appointment as Assistant Registrar o substantive vacancies not even from 1-7-1962 since no substantive vacancies were in fact available for their appointment to such vacancies. On behalf of the Government and respondents a list of such vacancies as were available as produced before us and has been marked Exh. R. 7 (in the case of Muftee Saadullah's appeal). Before dealing with the main question. in issue as to the nature of the vacancies to which the directly recruited respondents were appointed on 1-7-1962, it is necessary to state that in the provincial seniority lists published on 18-12-1964, 16-12-1965, 22-4-1967 and 1-6-1968, direct recruits respondents were shown junior to the appellants (who are departmental promotees, and the direct recruits had made several representations against the fixation of their seniority but in the seniority list circulated on 1-10-1970, the situation was reversed and in it the six respondents, who are direct recruits, were shown senior co appellants. This was as a result of order dated 26-4-1969 made by the Registrar on the representation of the direct recruits and the order of the Secretary to
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Government of West Pakistan in the Co-operative Department dated 8-7-1969 by which the appeals/representations by six of the appellants were rejected by the Secretary to Government of West Pakistan in the Co-operative Department. The reasons, which led the Registrar, Co-operative Societies to accept the appeal/representation of the direct recruits respondents in his, order dated 26th April 1969 are as follows:- (1) That the recruitment of direct Assistant Registrars was-- requisitioned against their reserved quota under rule 5(ii) of the Punjab Provincial Co-operative Service Rules, 1951 read with Integration Circular dated 25th November 1955 which prescribes 50:50 ratio for promotees and direct recruits. Thus their share of vacancies both in posts on all West Pakistanbasis and in Group Sub-Cadre 'C' had to be offered to direct recruits. (2) That 20 permanent vacancies had occurred during the period of probation of direct recruits as was evident from R. C. S. No. 1378-E, dated 14-9-1956 read with No. 2-E, dated 1-1-1958, but these vacancies were given to promotees under Order No. SOC (I)-1-64-62 dated 17-4-63, and was further indicated by notifications of even number dated 24th August 1963 and 20th January 1964. (3) That the appointment of direct Assistant Registrarsfrom 1-7-1962 was made to save the promotees from reversion,and as such it was a favour to them at the cost of the due rights of the direct Assistant Registrars due to them under the terms and conditions of their appointment. (4) That the moment a temporary likely to become a per--manent vacancy changes into a permanent vacancy, it has to be considered as such and it is for the administrative depart--ment to determine the actual position. (5) That in determining whether a vacancy had to be filled in by direct recruitment or by promotion, the percentage prescribed under the rules 50:50 had to be taken into considera--tion under para.13 of the Integration letter. (6) That the Tribunal set up to report on the inter se seniority, obviously was intended to assist the Government, but the Tribunal did not have the power to take decisions. (7) That the view of the Deputy Registrar's conference could not override the rules and Government instructions. (8) That it wars clear that the Government's intention was to absorb the direct recruits in Group Sub-Cadre they were to be absorbed on substantive basis. (9) That as the rules required, a definite percentage of vacancies to be reserved for direct recruits to be filled in by initial recruitment, they were entitled to get the benefit of seniority from the date of substantive appointment, and there should be no heart burning of any kind. The Registrar, Co-operative Societies having come to the conclusion that the six respondents were directly recruited against vacancies reserved for initial recruitment in the cadre of Assistant Registrars in terms of the Integration Circular was of the view that though the posts actually offered to them were temporary likely to become permanent, they Were permanent or were to become permanent. All the direct recruits were to be on probation during the period of probation and were thus for all intents and purposes to be treated as probationers in terms of rule 2.49 of the C. S. R. Vol. I, Part I. He further cameto the conclusion that these recruits having been recruited m against six permanent vacancies, the promotees were erroneously confirmed in those vacancies. In his view if they were decon--firmed it would lead to serious repurcussions. He, therefore, directed that the direct recruits should be confirmed against the existing permanent vacancies without disturbing the existing date of confirmation of promotees, who were wrongly confirmed against the vacancies reserved for the direct recruits. He ordered the confirmation of Messrs Malik Naik Mohammad Ropal, Ch. Hamid Ahmad, Faseeh-ud-Din Khan and Rafique Ahmad Khan w.e.f.1-7- 1962, leaving the question of con--firmation of Mr. Mumtaz Hussain Shah pending to be decided after completion of the enquiry against him. He further ordered that under the rules, the direct recruits were to rank senior to promotees, but as promotees had been erroneously confirmed, he
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thought that the best solution in fairness to the direct recruits and the promotees was to direct that the direct recruits be placed immediately below Malik Inamul Haq, the last man confirmed vide notification dated 24th August 1963. He therefore, directed the reversion of the seniority lists assigning the direct recruits their proper places. Against the order of the Registrar, Co-operative Societies, directing confirmation and fixing seniority of the direct recruits, Messrs Gul Nawaz Khan, Ch. Rashid Ahmad, Rashid Ahmad Hashmi, Zahoor-ul-Haq, Nasir-ul-Hassan and S. M. Mukarram, appellants filed representations/appeals before the Government of West Pakistan. The main contention raised by them was that as the direct recruits were appointed purely on a temporary basis, they were not probationers within the purview of rule 2.49 of C. S. R. Vol. II, Part I. They claimed that the seniority fixed by the Registrar, Co- operative Societies by his order dated 26th April 1969 should be set aside and their old seniority should be restored according to the previous seniority lists. They mainly relied on the wording of the requisition form sent to the Public Service Commission which mentioned that the posts were…
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