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Petitioner: MAHMOOD AKHTAR VS Respondent: SECRETARY TO GOVERNMENT OF PUNJAB LABOUR DEPARTMENT
1986 P L C (C.S.) 548
[Punjab Service Tribunal]
Present: S. A. Mahmud, Chairman, Khan Bashir Ahmad Khan and Prof. Aahfaq Ali Khan, Members
MAHMOOD AKHTAR‑‑Appellant
Versus
SECRETARY TO GOVERNMENT OF PUNJAB LABOUR DEPARTMENT and 4 others‑‑Respondents
Case No. 46/32 of 1973, decided on 12th July, 1973.
West Pakistan Labour Welfare Service (Class II) Rules, 1968
‑‑‑West Pakistan Labour Welfare Service (Class I) Rules, 1969, r. 10(1) (b)‑‑Explanations, Integration Circular, dated 25‑11‑1955, Paras. 17(a) & (b)‑‑Seniority‑‑Prior to enforcement of Rules and after their enforcement‑‑Selectee of earlier selection ranks senior to those of later selection‑‑"A" serving as Industrial Development Officer in Industries Deptt. appointed on 15‑1‑1959 temporarily for 6 months as Labour Officer subject to approval of Public Service Commission‑‑"B" serving as Manpower Survey Officer under Labour Deptt. applying for temporary post of Labour Officer advertised by Commission‑‑‑" A" also applying for same post but application subsequently, withdrawn‑‑"B" selected by Commission and appointed as Labour Officer on 16‑1‑1960 and post continuing thereafter‑‑Commission subsequently on 11‑1‑1971 approving regularisation of appointment of "A" but not with retrospective effect‑ Contention that appointment of "A" as Labour Officer w.e.f. 15‑1‑1959 was either by way of transfer or promotion repelled‑‑Appointment of A and B both held by way of direct recruitment and appointment of A prior to approval of Commission, held, was ad hoc appointment not countable towards seniority‑‑"B", earlier selectee of Commission would rank senior as Labour Officer to "A" being later selectee as per para. 17(a) of Integ. Circular‑‑A promoted as Assistant Director Labour Welfare on 7‑4‑1963 and B on 13‑8‑1968 i. e. prior to enforcement of West Pakistan Labour Welfare Service (Class I) Rules, 1969‑‑Seniority of both as Assistant Director, determinable with reference to their substantive appointment in quota reserved for promotion as per para. 17(b) of Integration Circular, dated 25‑11‑1955‑‑Promotion of both as Deputy Director made and effective after enforcement of Rules of 1969‑ Seniority as Deputy Director, would be governed by r. 10 (1)(b) of Rules of 1969 read with three standard Explanations there under.
F.D. Saifi for Appellant.
Zainul Abidin for Respondent No.5.
JUDGMENT
S.A. MAHMUD (CHAIRMAN).‑‑By this appeal by Mr. Mahmood Akhtar, appellant, who is now Joint Director Labour Welfare under section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, he prays that a direction may be issued to respondents Nos. 2 and 4 to declare the appellant senior to Mr. Maqbool Ahmad Shaikh, respondent No. 5 who is now Joint Director, Labour Welfare, as Deputy Director, Labour Welfare, Assistant Director, Labour Welfare and as Labour Officer. He claims seniority over respondent No. 5 in the ranks of Deputy Director Labour Welfare, and as Assistant Director Labour Welfare, on the basis of his seniority as Labour Officer, which he claims before us. The impugned order, which was notified on 2nd November, 1972, and is based on the supposed seniority of respondent No. 5 over the appellant runs as follow:‑
"Whereas the proposal regarding promotion of Mr. Maqbool A. Sheikh, from the rank of Assistant Director, Labour Welfare to the rank of Deputy Director L.W. was originally made in October, 1969, but it was held up because his case of confirmation as Labour Officer was yet to be decided. On the recommendations of the W. Pak. P.S.C., he was confirmed as Labour Officer, w.e.f. 17‑2‑1962.
Whereas the then Governor of West Pakistan was pleased to approve that Mr. Maqbool Ahmad Sheikh, may be promoted as Deputy Director, Labour Welfare, w.e.f. the date of promotion of his junior namely Mr. Mahmood Akhtar;
And whereas Mr. Maqbool Ahmad Sheikh was promoted as Deputy Director, Labour Welfare, vide No. Lab. (011‑13/69, dated 13‑5‑1970, and this promotion was erroneously given effect from 13‑5‑1970 instead of 28‑10‑1969, when his junior Mr. Mahmood Akhtar, was promoted as Deputy Director, Labour Welfare;
And whereas Mr. Maqbool Ahmad Sheikh, represented for giving effect to his junior Mr. Mahmood Akhtar, in order to maintain his inter se seniority, etc.;
And whereas the orders passed by the then Governor of W. Pak. were not faithfully carried out in spite of the fact that a vacancy of Deputy Director Labour Welfare, did not exist during the period from 28‑10‑1969 to 13‑5‑1970.
Now, therefore, in consultation with the S&GAD, the Governor of the Punjab is pleased to direct that the promotion of Mr. Maqbool A. Sheikh, from the post of Assistant Director, Labour Welfare on temporary basis, shall be deemed to have taken effect from 28‑10‑1969, with all consequential benefits except that he will not be allowed arrears of pay for the period from 28‑10‑1969 to 13‑5‑1970. The order No. Lah. (1)11‑13/69, dated 13‑5‑1970 shall be deemed to have been amended accordingly."
The appellant appears alongwith Mr. F.D. Saifi Advocate, Mr. Muhammad Tufail, Labour Officer appears on behalf of Secretary to Government of the Pb., respondent No. 2 and Director Labour Welfare, respondent No. 4 on whose behalf Mr. Saeed Hassan, Assistant also appears. Mr. Maqbool Ahmad Sheikh respondent 5 is present alongwith Mr. Zainul Abidin, Advocate.
The appellant was originally appointed as Manpower Survey Officer under the Central Government in the Department of Manpower and Exchanges, which was then under the Ministry of Labour, Central Government on 4th February, 1959. While the appellant was posted to one of the Employment Exchanges, the P.S.C. advertised a temporary post of Labour Officer, in response to a requisition of the Government, dated 4‑2‑1959, to fill a post, which was sanctioned upto 29th February, 1960. The appellant applied for being appointed against this post. It appears that in the meantime sanction for the continuation of the post upto 30th May, 1960 had been accorded. On 16‑1‑19 0, the appellant was offered appointment as a temporary Labour Officer upto 30th May, 1960 with the approval of the P.S.C. It appears that sanction for the continuance of the post was accorded from year to year, and the appellant continued against the post without a further formal order of appointment beyond 31‑5‑1960. By order of 18‑9‑1962, the respondent No. 5 was also originally previously confirmed as Labour officer, w.e.f. 17‑2‑1962 subject to his being finally approved by the West Pakistan P.S.C., its approval not being available till then. He was finally confirmed w.e.f. the same date when the P.S.C. had accorded its approval to his regularisation of his appointment as Labour Officer by its advice, dated 11‑1‑1971. By order of 20th June, 1964 the appellant was promoted as Assistant Director Labour Welfare and took over on 13‑8‑1964. By order of 28th October 1969, he was promoted as Offg. Deputy Director Labour Welfare He took over as such on 31‑10‑1969. By an order of 30th May, 1973, he was promoted as Joint Director L.W. and he took over on 31‑5‑1973. This promotion was ordered subsequent to the institution of this appeal by the appellant.
Mr. Maqbool Ahmad Sheikh, respondent No. 5 was recruited as a Junior Clerk in the Civil Sectt, Lahore from 27‑8‑1945, and was promoted as Assistant in Civil Sectt. from 4‑9‑1947. He was confirmed as Assistant He applied for the post of Assistant Trg. Officer in the Industries Department and was appointed as such in H. Qrs. Office of the Industries Department from 5‑9‑1957. The designation of this post was changed to Assistant Industrial Dev. Officer. On 15th January, 1959, the Director of L.W. appointed respondent 5 as Labour Officer in the Directorate in a temporary capacity for a period of 6 months in the first instance, and subject to the approval of the West Pakistan P.S.C., which was necessary under the West Pakistan Limitation of Functions Regulation. This appointment having been made, the Director wrote to the Director of Industries and Mines to relieve him immediately, and to ask the appellant to report for duty in the Labour Department The Director of L.W. sent a requisition to the P.S.C. in the prescribed form for recuritment to the temporary post of Labour Officer in the Directorate. The Director explained in his letter that as the post had been sanctioned by the West Pakistan Government with immediate effect, he had to fill the vacancy immediately in the interest of public service. Thus, it is apparent from the order of appointment and the requisition sent to the P.S.C. that the appointment of respondent 5 as Labour Officer was made on ad hoc basis, and subject to the approval of the P.S.C. It was to last for six months, or till such time as a recommended of the P.S.C. was available, whichever was earlier. Having sent the above requisition to the P.S.C., the Director L.W. changed his position and requested in his letter of 30th March, 1959 that the suitability of respondent 5 for appointment to this post may be considered, and the requisition sent by the Directorate may be treated as cancelled. He explained that it had been decided that the appointment of respondent 5 as Labour Officer should be considered as transfer‑cum‑promotion. It is obvious, however, that this is not a case of transfer or promotion, but is a case of direct appointment of this respondent as Labour Officer. This conclusion will be strengthened from what we state below. On 16‑5‑1959 the Secy. P.S.C. replied to the Director of L.W. that having examined the Confidential Record of respondent 5 the Commission had found that he had no experience of Labour Work, and the Commission would like to know the circumstances under which his appointment had been made as a Labour Officer. The Director Labour Welfare wrote to the P.S.C. explaining the circumstances, of his appointment. He stated therein that the respondent had acquired sufficient experience about the requirements of factories and other industrial units including allied matters like Labour and its problems, by his appointment as Assistant Industrial Development Officer in the Industries Department. Again, when the P.S.C. called for the Character Roll of this respondent the Director of Labour Welfare wrote to the West Pakistan P.S.C. explaining the particular of respondent No. 5. He also stated that the respondent had a fine record of service, with 14 years of service in Sectt. and the Industries Department For the same post, which was advertised by the P. S. C. , this respondent also made an application to the P. S. C . through the Department for being appointed, but when he was called by the P.S.C. by its letter, dated 24‑6‑1959 to appear before the Commission, he submitted in writing that since he had been appointed and assumed charge of a similar post of Labour Officer in the same scale from the department quota, he was not inclined to appear for the post of, Labour Officer, which the Commission had advertised. He thus, withdrew his candidature by his intimation, dated 1‑7‑1959. The P.S.C. proceeded to recommend the appellant against the said post, which was thus filled by him. The vacancy against which this respondent was appointed was thus filled by the appellant. The West Pakistan Public Service Commission, in its letter, dated 24th June, 1959, regretted that the Commission was unable to agree to the proposal of the Director of Labour Welfare made in his letter, dated 30th March, 1959 regarding the appointment of respondent No. 5 as Labour Officer in a permanent capacity on transfer‑cum‑promotion basis. The Commission intimated that they had accordingly decided to proceed with the selection of a suitable candidate by direct recruitment. The Commission further indicated that it felt that the re‑appeared to be no justification for appointing respondent No. 5 as Labour Officer, even as a stopgap arrangement, when he did not possess any experience of Labour work. The Commission called for reasons to be intimated why any unqualified man had been appointed against this post. The Director, Labour Welfare, explained in reply the circumstances, in order to justify his position by his letter, dated 3rd July, 1959. The Public Service Commission, in its letter, dated 28th July, 1959, advised the Director, Labour Welfare that the Commission could consider the case of Mr. Maqbool Ahmad Sheikh respondent only, if, as provided in Rule 7(1)(b) of the draft Class II Rules of the Labour Department, none of the Assistant Labour Officers within the Department was found suitable for promotion. In relation to this advice, the Director of Labour Welfare in his letter, dated 10th of August, 1959 again tried to justify the appointment of respondent No. 5, and recommended that as his case was covered by the revised draft Rules, the Commission may re‑determine his suitability to the post of Labour Officer, to which he had been appointed. He further added that from the experience he had gained since his appointment as Labour Officer, the Director, Labour Welfare was fully satisfied with the way he had carried out his assignment. On 9th September, 1959, the West Pakistan Public Service Commission advised that since the draft Rules had not yet been finalised, the rules relied upon by the Director had no legal force. The Commission was further of the opinion that appointment by transfer should not tantamount to promotion, and took a serious view of the tendency of the Department to fill vacancies meant for promotees by outsiders, when eligible and qualified persons were available for promotion in the Department itself. The Commission advised again that they were unable to agree to the appointment of respondent No. 5 in the manner proposed, and found no justification to make any change in their previous letter, dated 28th July, 1959 The Director, Labour Welfare again wrote to the Public Service Commission on 5th October, 1959 to reconsider its advice, on the ground that the Commission had not fully appreciated the circumstances in which respondent No. 5, had been appointed in the Labour Directorate. The Director, Labour Welfare reiterated that by his appointment as Assistant Industrial Development Officer in Industries Directorate respondent had acquired sufficient experience, which had given him wider vision and deeper insight into the problems facing the labour in the province. His experience should, therefore, be an asset rather than an estoppel in the discharge of his duties as Labour Officer. His appointment as Labour Officer was, therefore, made in the public interest. He possessed the prescribed qualifications and was, therefore, a very suitable officer for appointment as Labour Officer. He further explained that there appeared to be no objection to following the principles of recruitment incorporated in the draft Rules, which practice was already in vogue in other services. As regards the objection that appointment by transfer should not be tantamount to promotion, he invited the attention of the Public Service Commission to Rule 2.61, C.S.R . Volume I, Part I, which defined 'Transfer' as movement of the Government servant to take up the duties of a new post and it did not refer to the movement of the Government servant to the same or identical post. It, therefore, included events where promotion of Government servants was involved. The Director further explained that at the time of appointment of respondent No. 5 there were 9 posts of Labour Officers, which were lying vacant, and 8 Assistant Labour Officers were eligible for promotion. Under the draft rule, 50$ vacancies were filled by direct recruitment and the remaining 50$ i.e. 4 in number were to be filled by one of the 3 methods indicated in Rules 7 of the draft rules. Respondent No. 5 was appointed as Labour Officer on 16‑1‑1959. The present position was that the Assistant Labour Officers upto the sixth in order of seniority had been promoted as Labour Officers and the remaining 2 had less than 3 years service and as such were not suitable for promotion at that stage. He pointed out that while making the appointment of respondent No. 5, the promotion prospects of departmental officers were fully safeguarded, and it was not considered desirable to fill all the posts of Labour Officers by promotion from the rank of Assistant Labour Officers, as it would have affected the general standard of service by reason of accelerated promotions. He further explained that it was not out of place to mention that respondent No. 5 had functioned as Labour Officer for 9 months and had held one of the heaviest charges and had thus proved to be an asset to the Department. On 17th October, 1959, the Director, Labour Welfare ordered the reversion of respondent No. 5 to his substantive post of Assistant in the Civil Sectt since his appointment as Lahnur Officer in the Directorate had not been approved by the West Paki,‑tan Public Service Commission. He was directed to relinquish charge immediately and his services were placed at the disposal of the Chief Secretary to Government of West Pakistan with immediate effect. The Director, Labour Welfare also wrote to the Secretary, Public Service Commission on the same day stating that the Directorate's letter, dated 5th and 14th October, 1959 in respect of respondent No. 5 should be treated as cancelled. The Deputy Secretary (Establishment), Government of West Pakistan wrote in reply to the Director of Labour Welfare on 22nd October, 1959 that the question of posting of respondent No. 5 on reversion was under consideration, but there was no vacancy available immediately and a decision in his case would take some time. Pending the issue of his posting orders, he may not be relieved from his present appointment in the Directorate of Labour Welfare. The Director of Labour Welfare then wrote to the Deputy's Secretary concerned regretting that as orders of reversion had already been served on respondent No. 5 the question of retaining him, as Labour Officer could not be considered, especially when the Public Service Commission had not approved of his appointment. He regretted that he was unable to carry out the instructions. On 23rd October, 1959, the Director Welfare wrote to the Secretary to Government, West Pakistan in the Health, Welfare and Local Government Department stating that respondent No. 5 was not complying with the order of the Directorate in spite of the orders of his reversion issued to him, since his appointment as Labour Officer was not approved by the Public Service Commission and it was not desirable retain him any longer. He further explained that the post of Labour Officer had been advertised and interviews had been held in July, 1959 and although respondent No. 5 had applied for the post, he had subsequently declined to appear before the Public Service Commission which showed that he did not consider himself suitable to appear before the Commission, and tried to seek promotion departmentally. The contention of respondent No. 5 that he had been appointed on ad hoc basis pending approval of the recruitment rules and he could not, therefore, be reverted was untenable, because the Public Service Commission was only concerned with the rules and it was up to them to consider his appointment in the light of the existing conditions. The Director, Labour Welfare recommended that the representation of respondent No. 5 may be rejected. The Deputy Secretary (Establishment) wrote in reply to the Director of Labour Welfare on 24th October, 1959 stating that it was not the intention of the Department that respondent No. 5 should continue as Labour Officer against the advice of the Public Service Commission, and it was requested that he may be relieved only on receipt of posting orders from the Department, since no vacancy of an Assistant was available immediately, and it would take time before formal orders of his posting could be made. It was on this directive that the Director of Labour Welfare made an order on 24th October, 1959 continuing respondent No. 5 as Labour Officer until further orders.
The Director of Labour Welfare again wrote to the Public Service Commission on 7th December, 1959 recommending that the Public Service Commission may reconsider its advice. He explained at length the circumstances in which respondent No. 5 had been appointed as Labour Officer, referred to his experience gained already by him and to the advisability, in the larger interest of the service of not restricting the field of selection to Assistant Labour Officers only, and also to the excellent discharge of functions by the respondent No. 5. He suggested that the Public Service Commission may approve the appointment of respondent No. 5 on ad hoc basis until finalisation of Service Rules. He withdrew the letter of his predecessor Director, dated the 17th October, 1959 addressed to the Commission. On consideration of this recommendation of the Directorate Labour Welfare, the Public Service Commission agreed in its advice, dated 14th January, 1960 to the temporary appointment of respondent No. 5 in the Labour Welfare Directorate on ad hoc basis (which does not count for seniority) and suggested that his case may be referred to the Commission for final advice when service rules for Labour Officers had been finalised. On receipt of this advice, the Director, Labour Welfare proceeded to make an order on 18‑1‑1960 posting respondent No. 5, who had proceeded on leave meanwhile to Lyallpur with immediate effect.
On 18‑9‑1962 respondent No. 5, was provisionally confirmed as Labour Officer subject to the final approval by the West Pakistan Public Service Commission, which had not yet been accorded.
On 9‑4‑1963 respondent No. 5 was ordered to be promoted and appointed as Officiating Assistant Director for a period of 6 months only. This promotion was subject to the approval of the West Pakistan Public Service Commission. We are informed that he continued as Assistant Director beyond six months and no formal order extending his appointment beyond six months was ever made.
From Headquarters Office respondent No. 5 was transferred to Hyderabad as Assistant Director on 5‑1‑1966. He was sent on deputation to W.P.I.D.C. as Manager, Karachi Shipyard where he remained upto 15th June, 1969 when he was sent on deputation as Personnel Manager, Pakistan Security Printing Corporation, Karachi. He was recalled to the Department having been promoted as Officiating Deputy Director in a purely temporary arrangement, by an order of 13th May, 1970. He took over on 1‑6‑1970.
On 15‑7‑1967 a seniority list of Assistant Directors was issued in which appellant was shown junior to respondent No. 5 as Assistant Director. Another seniority list was issued on 1‑11‑1969 in which the appellant was again shown junior to respondent No. 5 as Assistant Director. He had made a representation against being shown junior to respondent No. 5 in 1968.
The appellant was promoted as Deputy Director, Labour Welfare by order of 28th October, 1969 but the promotion of respondent No. 5 as Deputy Director was deferred, pending regularisation of his appointment as Labour Officer by the Public Service Commission. Respondent No. 5 made two representations on 5th November, 1969 and 23rd December, 1969 praying that he may be promoted as Deputy Director. The Department proposed on 19‑2‑1970 that respondent No. 5 may be promoted as Deputy Director with effect from the date of promotion of the appellant, provided he was found suitable for promotion before the Selection Board. The Governor agreed with the proposal on 24th February, 1970. The representation by respondent No. 5 was accepted on the consideration that respondent No. 5 was senior to .the appellant as Labour Officer and Assistant Director.
On 17th March, 1972 a seniority list was issued in which the appellant was shown senior to respondent No. 5 as Deputy Director, but he was shown junior to him as Assistant Director. This notification thus, did not reflect the order of the Governor purporting to give seniority to respondent No. 5 as Deputy Director. Therefore, respondent No. 5 made a representation against his being shown junior to the appellant as Deputy Director. It is claimed that it was because of this representation that the impugned order of 2nd November, 1972, which has been reproduced above, was made, whereby the promotion of respondent No. 5 as Deputy Director, Labour Welfare was to be deemed to take effect from 28‑10‑1969. On 11th November, 1972, it was notified that as a result of issue of notification of 2nd November, 1972 respondent No. 5 shall appear at serial No. 7 while the appellant should appear at serial number 8 of the seniority list of Deputy Directors, Labour Welfare, issued on 17‑3‑1972, which seniority list was to be deemed to have been corrected accordingly.
The respondent No. 5 was promoted as Joint Director by order of 30th May, 1973 and he…
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