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Petitioner: Raja MUHAMMAD ASHRAF BHATTI VS Respondent: THE GOVERNMENT OF THE PUNJABHonorable Justice S. ABDUL JABBAR KHAN
1986 P L C (C.S.) 582
[Service Tribunal Punjab]
Present: S. Abdul Jabbar Khan, Chairman and
Abdul Hamid Chaudhry, Member
Raja MUHAMMAD ASHRAF BHATTI
Versus
THE GOVERNMENT OF THE PUNJAB and others
Case Nos. 825/1080, 827/1081 and 828/1082 of 1984, decided on 28th December, 1985.
(a) Civil service--
---Promotion--Out of turn promotions under direction of Federal Government--Effect--Federal Government, held, could give directions to Provincial Government about promotion R Provincial Government employees--Concept of out of turn promotion could be spelled out from printed form of A.C.R. of officials wherein special column has been provided for query about such promotions.
P L D 1981 S C 612 and P L D 1981 S C 612 ref.
(b) Civil service--
---Locus poenitentiae, principle of--No law of land, or rules on service matter, held, would authorise Government to effect modification in orders passed by previous competent Government on regular and permanent basis--Failure to observe such rule would create chaos, insecurity and affect efficient performance of official functions by public servants.
1984 P 1. C (C S) 546 ref.
(c) Civil service
---Accelerated promotions--Concept of--Government, held, would be under no obligation to consider case of remaining colleagues of promotee, alongwith such promotees for awarding such out of turn promotion as awarded to promotees.
(d) Civil service-----
---Seniority list--Such list modified after determination of objections filed against same, held, would be deemed final in circumstances.
P L D 1981 S C 612 rel.
(e) Civil service------
---Promotion--Effect of--Employee promoted to higher grade, held, would gain seniority from date of such promotion over colleagues of same grade not so promoted.
Sh. Zia Ullah for Raja Muhammad Ashraf Bhatti and M.A. Lone, for Appellants.
Dr. Khalid Ranjha and Ch. Muhammad Aslam Virk for Rao Shamsher Ali Khan Appellant.
Masud Ahmad Riaz, Syed Jamshed Ali, Ch. Mushtaq Masood, Ch. Muzammal Khan and Nayyar Iqbal Ghori for Respondents.
Haroonur Rashid Cheema, District Attorney for the Government.
JUDGMENT
S. ABDUL JABBAR KHAN (CHAIRMAN).---Messrs Raja Muhammad Ashraf Bhatti, Additional Commissioner (Consolidation), Rawalpindi, M.A. Lone, Secretary (Settlement and Cons.) Board of Revenue, Punjab, Lahore, and Rao Shamsher Ali Khan, Additional Commissioner (Cons.), Multan, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which Raja Muhammad Ashraf Bhatti has impleaaeo the Government of the Punjab through the Chief Secretary, Civil Secretariat, Lahore, the Additional Secretary (Services) to Government of the Punjab, Services, General Administration and Information Department, Lahore and respondent No 3 Murtaza Beg Barlas to 105 as per Appeal No.825/1080 of 1984, whereas M.A. Lone, has impleaded the Government of the Punjab through the Chief Secretary, Civil Secretariat, Lahore, the Additional Secretary (Services) to the Government of the Punjab, Services, General Administration and Information Department, Lahore and respondent No. 3 Murtaza Beg Barlas to 29, in Appeal No. 827/1081 of 1984 and Rao Shamsher Ali Khan has impleaded Government of the Punjab through Secretary (Services), General Administration and Information Department, Lahore, and respondent No. 2, Sh. Said Iqbal Shamsi to 46 in Appeal No. 828/1082 of 1984, as respondents.
2. By virtue of these appeals the appellants have prayed that their appeals be accepted and seniority list, dated 25-9-1982 be set aside and their seniority be determined from the date of assumption of the charge in Grade-18.
3. Although the history of each case is a bit different yet the point for adjudication in all these three appeals being identical in nature, we have decided to dispose of these appeals by our this single judgment.
4. Brief facts of the case are as under:--
MUHAMMAD ASHRAAF BHATTI
While posted as City Magistrate, Rawalpindi, he alongwith nine Police officials of different ranks joined a raiding party headed by Muhammad Aslam Lone, the then Assistant Commissioner, Saddar Rawalpindi, and successfully conducted about a dozen of raids on the dens of notorious smugglers in the city and unearthed about 42000 bags of Basmati Rice, 1200 bags of Sugar, 570 bags of Atta and 606 Tins of Vegetable Ghee worth crores of rupees, hoarded for black-marketing and smuggling to Afghanistan, on the night between 3rd and 4th July, 1973. These raids were conducted under the orders of the then President of Pakistan communicated through the Commissioner, Rawalpindi Division, Rawalpindi. After obtaining the details of the raids from the Commissioner, Rawalpindi Division, Rawalpindi, and in consultation with the Chief Secretary to the Government of the Punjab, the Federal Government in appreciation of the remarkable job done by the raiding party, decided to reward the officers on the following lines:
(i) Issuance of letters of appreciation under the signatures of the President of Pakistan to Mr. F. K. Bandial, Commissioner, Rawalpindi, Haji Muhammad Akram, Deputy Commissioner, Rawalpindi and Ch. Sardar Muhammad, Senior Superintendent of Police, Rawalpindi.
(ii) Issuance of letters of appreciation signed by the Governor of Punjab to Mr. M.A. Lone, Assistant Commissioner, Rawalpindi, the appellant and Mehr Allah Bakhsh Sial, Deputy Superintendent of Police, City, Rawalpindi.
(iii) Giving of cash rewards equal to two years' salary to all subordinate non-gazetted officers /officials who had joined the raiding party.
In addition, the Federal Government also asked the Provincial Government to give one-step premature/out-of-turn promotion to the officers joining the raiding party.
Decisions regarding No. (i) and (iii) were duly implemented. However, as regards No. (ii) above, besides being given a letter of appreciation, Mehr Allah Bakhsh Sial, D. S. P. City, Rawalpindi, was promoted as Superintendent of Police, Raja Zahoor Ahmad, Sub Inspector was promoted as Inspector of Police and seven non-gazetted police officials were promoted to the next higher ranks, but M. A. Lone, Assistant Commissioner and the appellants were given only letters of appreciation signed by the Government of Punjab. The matter was taken up by the Federal Government with the Provincial Government for giving one step promotion to M. A. Lone and the appellant, as had been done in the case of other officers and ultimately in pursuance of the directive of the Federal Government, M. A. Lone, Assistant Commissioner at the relevant time, and the appellant was also given one step premature/out of-turn promotion to Grade-18 (DC/DS), vide Punjab Government Notification No. C.I.2-2/74, dated 27-12-1974. It will be useful to mention here that M.A. Lone was already enjoying Grade-18 (A.C/A.D.C). Eversince the said promotion the appellant has all along been holding jobs in Grade-18 (DC/DS), like Administrator, Municipal Committee, Faisalabad, Multan and Rawalpindi, A.D.C.(G), Faisalabad and Vehari, Director Local Government, Rawalpindi, Deputy Commissioner, Gilgit and at present posted as Additional Commissioner (Cons.), Rawalpindi. However, on 15-1b-1977, the Government of Punjab issued notification No. C.I.2-2/77, dated 11-10-1977, cancelling premature/out-of-turn promotion of this appellant from Grade-18 (DC/DS). The appellant made a representation against the same in October, 1977, which was accepted and Government restored his promotion and seniority in Grade-18 (DC/DS). Thereafter, the appellant held senior appointments as Additional Deputy Commissioner (General), Faisalabad, Director, Local Government, Rawalpindi, Deputy Commissioner, Gilgit, and is now holding the assignment of Additional Commissioner (Consolidation), Rawalpindi. On 25-9-1982, a provisional seniority/ gradation list of officers of former P.C.S. (Executive) in Grades 18 to 20 corrected upto 31st August, 1982, was issued and through this seniority list, the seniority of the appellant was upset. Although in the earlier seniority list M. A. Lone was shown at serial No. 33 and appellant at No. 34, but in the impugned seniority list/Gradation list M.A. Lone has been shown at No. 63 and appellant at No. 78, with a further observation that appellant shall continue to be relegated in seniority till his batch-mates get promotion. This apparently has occurred on the decision, dated 18-3-1980, of the Provincial Selection Board. Aggrieved against the aforesaid refixation of seniority of the appellant through the impugned seniority list, the appellant submitted a representation on 10-10-1982, to the Provincial Government through the Commissioner, Rawalpindi Division, Rawalpindi. This representation remained pending for a pretty long time and ultimately a reminder was sent on 17-7-1984, to the Provincial Government which has now rejected the said representation and this has been communicated to the appellant by the Under Secretary (S-1), Government of the Punjab, Services, General Administration and Information Department by his letter, dated 23-9-1984, which was received by him on 26-9-1984. The appellant applied to the Chief Secretary, Government of the Punjab, for the supply of certified copy of the order of Government showing reasons for the rejection of his representation but the Government has refused to supply the same. Hence this appeal.
M.A. LONE:
On the night between 3rd and 4th of July, 1973, the appellant headed a raiding party while he was posted as Assistant Commissioner, Rawalpindi, comprising Muhammad Ashraf Bhatti, City Magistrate, Rawalpindi, Mehr Allah Bakhsh Sial, D.S.P. City, Rawalpindi, Raja Zahoor Ahmad, Sub Inspector of Police, six other Police officials of different ranks and Summary Clerk of the appellant and successfully conducted about a dozen of raids on the dens of notorious smugglers in the city and unearthed about 42000 bags of Basmati Rice, 1200 bags of Sugar, 570 bags of Atta and 606 Tins of Vegetable Ghee worth crores of rupees. As stated earlier in the case of Muhammad Ashraf Bhatti under the instructions of the then President of Pakistan communicated through the Commissioner, Rawalpindi Division, Rawalpindi, these raids were conducted. Similarly, in this case also as stated in the case of Muhammad Ashraf Bhatti, the Federal Government in consultation with the Chief Secretary, Government of the Punjab, decided to reward the officers on the following lines: --
(i) Issuance of letters of appreciation under the signatures of the President of Pakistan to Mr. F. K. Bandial, Commissioner, Rawalpindi, Haji Muhammad Akram, Deputy Commissioner, Rawalpindi and Ch. Sardar Muhammad, Senior Superintendent of Police, Rawalpindi.
(ii) Issuance of letters of appreciation signed by the Government of Punjab to the appellant, Muhammad Ashraf Bhatti, City Magistrate, Rawalpindi and Mehr Allah Bakhsh Sial, Deputy Superintendent of Police, City, Rawalpindi.
(iii) Giving of cash rewards equal to two years' salary to all subordinate non-gazetted officers /officials who had joined the raiding party.
In addition, the Federal Government also asked the Provincial Government to give one-step premature/out-of-turn promotion to the officers joining the raiding party. Decision regarding No. (i) and (iii) were duly implemented as decided. However, as regards No. (ii), besides being given a letter of appreciation, Mehr Allah Bakhsh Sial, D.S.P. City, Rawalpindi, was promoted as Superintendent of Police, Raja .Zahoor Ahmad, Sub Inspector was promoted as Inspector of Police and seven non-gazetted police officials were promoted to the next higher ranks but the appellant and Raja Muhammad Ashraf Bhatti were 'given only appreciation letters signed by the Governor of the Punjab.
The matter was taken up by the Federal Government with the Provincial Government for giving one step promotion to the appellant as well as to Muhammad Ashraf Bhatti and ultimately the appellant and said Muhammad Ashraf Bhatti were given one step/out-of-turn promotion in Grade-18 (DC/DS), vide Punjab Government Notification No. C.I. 2-2/74, dated 7-12-1974. The appellant was also enjoying the Grade-18 (AC/ADC(G), at the relevant time. Eversince the said promotion the appellant has all along been holding jobs in Grade-18 (DC/DS) like, Director, Punjab Employees Social Security Institution, Gujranwala, Additional Deputy Commissioner (General), Lahore, Deputy Commissioner, Muzaffargarh, Deputy Commissioner, Multan, Additional Commissioner (Cons.), Sargodha Division, Deputy Secretary, Agriculture Department, Deputy Secretary, Local Government Department, Deputy Secretary, Labour Department, Vice-Commissioner, Punjab Employees Social Security Institution, Lahore, and at present holding the assignment of Secretary (Cons. and Settlement) in the Board of Revenue, Lahore. Since the date of out-of-turn promotion of the appellant, three Seniority /Gradation Lists were published and circulated by the Government of Punjab, the first on 31-12-1976, showing the appellant as Deputy Commissioner, Muzaffargarh, second on the 13th of July, 1978, indicating the name of the appellant at No. 70 after Syed Fgzal Hussain Shah of 1963 batch and the third in late 1980 mentioning the appellant at serial No. 119 below Syed Fazal Hussain Shah, an officer of Grade-18 (D.C./D.S.) of 1963 batch. While issuing the second of these Notifications in 1978, the Provincial Government, by means of its letter, dated 13th of July, 1978 had invited objections by the 15th of August, 1978, but no objections were filed by any officer, the seniority and out of turn promotion of the appellant, was maintained even in the subsequent seniority/ gradation list issued in late 1980. However, on 15-10-1977 the Government of Punjab issued a Notification No. C.I.2-2/77, dated 11-10-1977, cancelling the premature/out-of-turn promotion from Grade-18(DC/DS). The appellant submitted representation again and again to Government, Martial Law Administrator/ Governor of Punjab, who was pleased to accept tae representation of the appellant and restored his promotion and seniority of Grade-18 (DS/DC Grade) retrospectively. Copy of this Notification, dated 14-1-1978, is appended with the appeal as Annexure ',1'. However, the Provincial Government on 25-9-1982, published a provisional seniority/ gradation list of officers of the former- P.C.S. (Executive Branch) in Grade-18 to 20 corrected upto 31st of August, 1982, by which the seniority position of the appellant was completely upset. In the immediately pre-existing seniority list the appellant had been shown at No. 33 while Muhammad Ashraf Bhatti had been shown at No. 34, but in the aforesaid impugned provisional seniority/ Gradation list while the appellant has been shown at No. 63, Muhammad Ashraf Bhatti has been mentioned at No. 78, with the further observation that Muhammad Ashraf Bhatti shall continue to be relegated in seniority till his batch-mates get promotion. The appellant submitted representation to the Provincial Government through proper channel. After about two years the Under-Secretary (Services I), to the Government of Punjab, Services, General Administration and Information Department, Lahore, informed the appellant, vide letter, dated 14-10-1984, about the rejection of his representation. The appellant also applied to the Chief Secretary, Government of the Punjab, Lahore, for supplying a certified copy of the order of Government containing reasons of rejection of his representation, but Government showed its inability to supply copy of the same. Hence this appeal.
RAO SHAMSHER ALI KHAN:
The appellant joined service as Tehsildar in 1965, and was promoted to P. C. S. (Grade-17) after clearing his departmental examination in 1972. The appellant was posted primarily on revenue assignments. The appellant was in a position to earn very good chits from his superiors and was granted commendation certificates and Sanads from time to time. In view of the recommendations made earlier for appellant's accelerated promotion by his Deputy Commissioner, Commissioner and the Revenue Minister concerned, the appellant's case was short listed for consideration of the Provincial Selection Board alongwith others. The appellant appeared before the Provincial Selection Board, on 8-2-1972. The Provincial Selection Board found the appellant fit for out-of-turn promotion for Grade-18 (DC/DS) Grade, and as such his promotion was duly notified, vide Notification, dated 8-2-1977. In consequence thereof the appellant was appointed as Settlement Officer, Layyah, on 30-3-1977, which was Grade-18 (DC/DS) post. "However, while notifying the appellant for this post, an anomaly was created by introducing to mention as under: --
"Shamsher Ali Khan, Colony Assistant, Sargodha, is transferred and posted as Settlement Officer, Layyah in his own pay and grade in N.P.S.-18."
The appellant made a representation to the Government of Punjab alleging therein that he had been awarded Grade-18 (DS/DC) as such he should not be treated in lower grade. The representation of the appellant was accepted and earlier Notification, dated 30-3-1977, was withdrawn and substituted by a Notification of even number and date, whereby the appellant was ordered to be posted as Settlement Officer, Layyah, without the rider clause of being placed in the lower grade. i.e.Grade-18 (AC/ADC). He was appointed /posted as Deputy Commissioner, Bahawalpur, vide Notification, dated 14-5-1977. In August, 1977, the appellant was again transferred to the post of Settlement Officer, Layyah, which was equivalent to the post of Deputy Commissioner/ Deputy Secretary. However, the case of the appellant became under review according to M. L.I-21, which came into force, on 8-8-1978, and resulted into Notification cancelling the Notification, dated 18-2-1977, whereby the appellant had been promoted in Grade-18 (DC/DS) and reverted back to Grade-17. The appellant made a representation to Government of Punjab, against the said treatment so meted out to him and prayed that Notification, dated 18-2-1977, be withdrawn and he be promoted to Grade-18 (DC/DS). This resulted in acceptance of the prayer the appellant and his Grade was restored to him alongwith Messrs M'. A. Lone, Muhammad Ashraf Bhatti and Mian Wahid-ud-Din. It will be useful to mention at this stage that while, in pursuance of Notification, dated 14-1-1978, Messrs Muhammad Aslam Lone, Muhammad Ashraf Bhatti and Mian Waheed-ud-Din, were given Grade-18 (DS/DC), whereas the appellant was posted as Additional Deputy Commissioner (Cons.), Sheikhupura, which is Grade-18 (AC/ADC) post. The appellant made a representation and also filed writ petition in the High Court, vide No. 2132/78. However, pending the writ petition, the appellant was restored to the assignment equivalent to which he had been in Grade-18, and was posted as Additional Commissioner (Cons.) Sargodha, the appellant, therefore, withdrew his representation, as his grievance stood redressed. When the appellant made a request for settling seniority in Grade-18, w.e.f. the date of his having accepted the post as Settlement Officer, Layyah and Deputy Commissioner, Bahawalpur, from 2-4-1977. The Government put an embargo in his name in the seniority list as under:
"shall continue to be relegated in sleniority till their batch-mates get promotion."
Instead of placing his name at serial No. 34, his name was placed at -serial No. 79 with a rider indicated above, in the seniority list of officers of Executive Branch (of Grade 18-20), dated 31-8-1982. The appellant represented against the aforesaid rider clause attached to his seniority and also against his relegation to serial No. 79 instead of placing him at serial No. 34, but the same was summarily rejected and rejection order was conveyed to the appellant, on 4-10-1984. Hence this appeal.
5. We have heard the learned counsel for the appellants as well as learned District Attorney on behalf of the Government and learned counsel for the contesting respondents and have perused the record of this case and written statements filed by the contesting respondents, minutely with their assistance.
6. Learned Counsel for appellants Muhammad Ashraf Bhatti and M.A. Lone, has submitted that the history of their cases so given above would make it crystal clear that while certain actions were taken by the respondent Government to upset their out-of-turn promotion but by withdrawing the said order and restoring the original orders in 1978, would above that the Provincial Government accepted that they were not in a position to withdraw such promotions, which had taken effect under the principle of locus poenitentiae and animus revertendi, therefore, the present action of the Government by issuing a provisional seniority/ gradation list, dated 25-9-1982, and assigning the appellants at No. 78 instead of 34 and No. 63 instead of 33, in the said list of Grade-18 (DC/DS) Grade, was an action for which they had no jurisdiction as well as authority under the principle of locus poenitentiae recognized by section 21 of the General Clauses Act, 1897, and section 20 of the West Pakistan General Clauses Act, 1956. Learned Counsel for the appellants has further relied on the anology of out-of-turn promotion, made in favour of certain Police Officers, who had also joined the appellants in the said raids. According to the learned counsel those officers/ officials still enjoy their promotion and no interference of any sort has been done by the Government in their case. It has been further argued that since the award of one step premature/out-of-turn promotion to the appellants, three seniority lists were published and circulated by the Provincial Government. In all these seniority lists, the appellants were show senior and objections were invited from the officers concerned, but no such objections were filed and seniority of the appellants was maintained in the subsequent seniority list issued in the year 1980. This seniority list was never challenged by the respondents (colleagues of the appellants) and thus has attained finality once for all.
7. Learned Counsel for the appellants has further emphasized that the concept of out-of-turn promotion was always there and the promotions of the appellants was thoroughly scrutinized both by the Provincial as well as Federal Government and it was after quite a detailed correspondence between the Federal Government as well as Provincial Government, that the Government of the Punjab passed orders in favour of the appellants and others. He vehemently argued that Government did possess the statutory and inherent powers to award such promotions to the officers having meritorious service record, specially to able officers. The said authority of the Government in making out-of-turn promotion to able officers, could also be spelled out from the Character Roll wherein specific column has been provided for the purpose. This would also show that the Provincial Government enjoy the inherent powers to do so. Learned counsel for the appellants has also elaborated his point by submitting that even the Constitution of 1973, pronounce the concept of out-of-turn promotion and the Provincial Government has to obey such directions provided in the statute. According to him, in both the cases of these appellants, a positive direction was given to the Provincial Government which was complied with by it. Learned Counsel for the appellants further pointed out that there was nothing in the Service laws including the Punjab Civil Servants Act, 197`4, and the Rules framed thereunder, authorising the Provincial Government to upset the original order of one step premature/out-of-turn promotion of the appellants and disturb their seniority after a lapse of more than 8 years. 8. With regard to the behaviour of the respondents in not challenging the appellants out-of-turn promotion/ seniority learned counsel for the appellants has submitted that it was fully known to the respondents, in view of the settled law that promotion was not a right of the incumbent and was only a prerogative of the Government and thus accepting this principle none of the respondents ever challenged this out-of-turn promotion or any of the seniority lists, so enjoyed by the appellants, in which they were consistently shown as senior to them. 9. Learned Counsel for the appellants has assailed the authority of the Provincial Selection Board and has submitted that it had no legal sanctity or moral justification to put a rider clause against the appellants by observing that they would enjoy the seniority till their batch-mates get promotion, particularly when their promotions have been so maintained. He has relied on the precedents in case of Mr. A. K. Khalid, Raja Salim Akhtar, Mr. F.K. Bandial, Mr. S.I. Haque and Mr. Iftikhar Rashid etc. apart from numerous Police Officers and officials of the Excise and Taxation Department, which he has not…
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