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Petitioner: AHSANULLAH A. MEMON VS Respondent: GOVERNMENT OF SINDH
1993 P L C (C
1993 P L C (C.S.) 937
[Supreme Court of Pakistan]
Present: Ajmal Mian, Sajjad Ali Shah and Salem Akhtar, JJ
AHSANULLAH A. MEMON
Versus
GOVERNMENT OF SINDH through Chief Secretary and 3 others
Civil Appeal No. 247‑K of 1991, decided on 6th March, 1993.
(On appeal from the judgment of the Sindh Service Tribunal dated 29‑7‑1991 passed in Appeal No. 97/89).
(a) Sindh Service Tribunals Act (XV of 1973)‑‑
‑‑‑‑ S. 4‑‑‑Sindh Civil Servants Act (XIV of 1973), S. 24‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Leave to appeal was granted to examine the questions whether a civil servant aggrieved by notification which adversely affected his seniority in a particular cadre had locus standi to question the validity of such notification; whether the operation of section 4 of the Sindh Service Tribunals Act was not limited to only a seniority list but also covered any other final order issued by the departmental authority affecting the seniority of a civil servant; and whether under section 24 of the Sindh Civil Servants Act, the Provincial Government could not pass any order in favour of a civil servant in violation of statutory rules adversely affecting the rights and privileges of other civil servants conferred by law.
Per Ajmal Mian, J.; Saleem Akhtar, J. agreeing; Sajjad Ali Shah, J contra‑‑‑
(b) Sindh Service Tribunals Act (XV of 1913)‑‑--
‑‑‑‑Ss. 24, 2(b) & 8‑‑‑Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 10(2)‑‑‑Sindh Civil. Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 4‑‑‑Till the time a deputationist was absorbed in the department, he did not enjoy the status of a "civil servant" being not covered by the definition of "civil servant" given in S. 2(b) of the Act and S. 24 of the Act could not be pressed into service‑‑‑Status of a deputationist in the Department was that of an ad hoc appointee or a temporary appointee, therefore he could not have been confirmed retrospectively‑‑‑Appellant who was admittedly affected adversely as to his prospects of future promotion had sufficient locus standi to insist that Government should act in accordance with law and Rules and not in contravention thereof as to affect him adversely in purported exercise of its plenary power under S.24 of the Act‑‑‑Scope of Ss. 8 & 24 discussed‑‑ Limitations on the exercise of powers under S. 24 highlighted.
In the present case respondent who was a University employee was taken on deputation for a period of two years and, therefore, he was in the Education Department on temporary and ad hoc basis till the time he was to be permanently absorbed.
If respondent (who was originally the employee of University) was to be permanently absorbed in Grade‑18 post, the normal procedure for appointment was through Public Service Commission. As respondent's status as deputationist in the Education Department was of an ad hoc appointee or a temporary appointee, he cold not have been confirmed retrospectively, in view of clause (2) of Rule 10 of the Rules of 1975, No doubt under section 24 of the Act, the Government enjoys plenary power to deal with the case of any civil servant in such manner as may appear to it to be just and equitable notwithstanding any provision of the Act and the Rules. But the Above power is to be exercised fairly, reasonably and in a manner which may not prejudice or take away any interest or right of a third person. Till the time respondent was absorbed permanently through the notification he did not enjoy the status of a civil servant as he was not covered by the definition of "civil servant" given in clause (b) of section 2 of the Act, being a deputationist and, therefore, till then, section 24 could not have been pressed into service as it referred to a civil servant and not to a person who was an employee of a corporate body like a University.
Respondent in his first application did not request for his absorption in the Education Department with retrospective effect. Similarly, in the summary placed before the then Chief Minister, it was not recommended that respondent be absorbed with retrospective effect. Consequently, the notification absorbed respondent in the Education Department with immediate effect and not retrospectively. Respondent did not protest or make claim for getting himself absorbed retrospectively till the filing of his application after the expiry of nearly three years, to the then Chief Minister Sindh. The above application was not entertainable after the expiry of such a long period. The summary prepared on the basis of the above application apparently did not reflect correct factual position inasmuch as it had been stated in the same that "This had definitely placed appellant in a disadvantageous position, because meanwhile some junior Assistant Engineers of the Department who, at the time of respondent's induction in Education Department were not eligible for promotion on account of their not having rendered the prescribed length of service i.e. 5 years whereas respondent was already in B‑18 when he joined the Education Department".
Factually the appellant had completed his five years service as he was appointed as Assistant Executive Engineer in Grade‑17 through the Public Service Commission and, therefore, he was very much eligible for promotion when respondent was taken on deputation. There was also no foundation to make averment in the above summary that the Department intended initially to absorb respondent retrospectively as neither respondent in his above application which was filed after expiry of about four months from having joined as a deputationist, claimed absorption retrospectively nor this was so stated in the above first summary. The exercise of power by the Government under section 24 of the Act in the present case could not be treated as just, fair and equitable. It is true that in section 8 of the Act it has been provided that a civil servant has no vested right in the seniority. The question in the present case was not simpliciter fixation of seniority inter se between the appellant and respondent but the point in issue was, as to whether respondent could have been permanently absorbed in the Education Department with retrospective effect by virtue of section 24 of the Act, which admittedly had adversely affected the appellant as to his prospects of future promotion. The appellant may not have any vested right in a particular seniority in view of section 8 of the Act but nevertheless, he had sufficient locus standi to insist upon that the Government should act in accordance with Service Laws/Rules and not in contravention thereof as to affect him adversely, in purpoted exercise of its plenary power under section 24 of the Act.
The exercise of power by the Government under section 24 of the Act for absorbing respondent with retrospective effect after the expiry of nearly three years therefore was not warranted by facts and law.
The exercise of power by the Government under section 24 of the Act after the expiry of more than three years from the date of issuance of notification absorbing respondent with immediate effect for giving retrospective absorption was not warranted by facts and law. The factum that respondent had become Executive Engineer in the University or that he was brought on deputation in the Education Department as an Executive Engineer (Grade‑18) when the appellant was only Assistant Executive Engineer in Grade‑17 was of no consequence, as admittedly the appellant joined as an Assistant Executive Engineer, in the University, about two weeks before respondent had joined the other University. Furthermore, the appellant joined the Education Department on regular basis through the Public Service Commission and, therefore, in normal course, upon the expiry of five years period the appellant had become eligible for promotion as Executive Engineer in Grade‑18 as five years length of service had been treated as the requirement for promotion in the two summaries placed before the then Chief Minister. However, he was actually promoted as Executive Engineer before respondent was permanently absorbed m the Education Department upon his application. Till respondent was permanently absorbed in the Education Department, he had no lien or right in the Education Department except as a deputationist liable to be reverted back upon the expiry of two years period or earlier in case it was so decided by the competent authority. Respondent's case was not a case of hardship but he voluntarily opted to join the Education Department. The Government is free to grant any benefit to respondent under section 24 of the Ad so long as exercise of such power is just and equitable and it does not, in any way, affect or prejudice a third person.
Respondent's absorption in the Education Department with retrospective effect was therefore declared as not sustainable in law.
Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 and S. Habib Haider v. The Secretary‑General, Ministry of Interior, Islamabad and 14 others 1991 SCMR 1505 ref.
Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 distinguished.
Per Sajjad Ali Shah, J., contra.‑‑‑
Mukhtar Ahmed and others v. Government of West Pakistan PLD 1971 SC 846 and Iqan Ahmed Khurram v. Government of Pakistan PLD 1980 SC 153 distinguished.
S. Habib Haider v. The Secretary‑General, Ministry of Interior, Islamabad and 14 others 1991 SCMR 1505; Muhammad Iqbal Khokhar and others v. The Government of the Punjab PLD 1991 SC 35; University of Balochistan v. Saeed Muhammad Khan and others 1986 SCMR 1063; Islamic Republic of Pakistan v. Israrul Haq and others PLD 1981 SC 531 and Mazhar Ali v. Federation of Pakistan 1992 SCMR 435 ref.
Abdul Hafeez Memon, Advocate Supreme Court instructed by Mrs. Majida Razvi, Advocate‑on‑Record for Appellant.
Mr. A.G. Mangi, Addl. A.‑G. Sindh for Respondents Nos. 1 to 3.
Mr. Fakhruddin G. Ebrahim, Advocate Supreme Court instructed by Mr. N.C. Motiani, Advocate‑on‑Record for Respondent No. 4.
Date of hearing: 6th May, 1992.
JUDGMENT
SAJJAD ALI SHAH, J.‑‑‑This appeal with leave is directed against judgment dated 29th July, 1991 of the Sindh Service Tribunal at Karachi, whereby Appeal No. 97 of 1989 filed by appellant herein is dismissed, in which Notification dated 22‑6‑1989 was challenged whereby respondent No. 4 has been permanently absorbed as Executive Engineer in the Directorate of Engineering Works of Education Department of Government of Sindh with effect from 31‑7‑1985.
2. Briefly stated the relevant facts giving rise to this appeal are that appellant was serving as Assistant Engineer (BS‑17) in Sindh Agricultural University; Tando Jam, when his services were placed at the disposal of Government of Sindh (respondent No. 1) and he was posted as Project Assistant Engineer (BS‑17) in the Third Education Project, Education Department, Government of Sindh, Hyderabad, in 1979. Subsequently, his services were regularised vide Notification dated 14‑7‑1980. After approval from Departmental Promotion Committee appellant was promoted as Executive Engineer (BS‑18) with effect from 20‑11‑1985. Mr. Akber Hussain Rashidi (to be referred hereafter as respondent No. 4) ‑was already working as Executive Engineer (BS‑18) with Sindh Univer3ity, when vide Notification dated 11‑8‑1985, his services were placed at the disposal of Government of Sindh on deputation for a period of two years. Later vide Notification dated 8‑4‑1986, respondent No. 4 was absorbed permanently in the service by the Government of Sindh with immediate effect. Grievance of the appellant is that he was promoted as Executive Engineer (BS‑18) by Government of Sindh on 22‑11‑1985 and in the same cadre respondent No. 4 was confirmed with immediate effect as Executive Engineer (BS‑18) on 8‑4‑1986, hence respondent No. 4 ranked junior to the appellant and his name appeared in the seniority list of Executive Engineers (BS‑18) in the Education Department at S. No. 4, while name of appellant appeared as S. No. 1. Subsequently respondent No. 4 was given seniority with retrospective effect by the Chief Minister of Sindh and vide Notification dated 22‑6‑1989, he has been absorbed permanently as Executive Engineer in the Education Department with effect from 31‑7‑1985, which was the date of his joining Education Department as deputationist and not as a civil servant. Government of Sindh circulated tentative seniority list showing respondent No.
4 senior to the appellant. Feeling aggrieved against the retrospective absorption in service of respondent No. 4, appellant filed review petition to the Chief Minister and on getting no response within the stipulated time field appeal before Sindh Service Tribunal against Government of Sindh and their functionaries and respondent No. 4, which is dismissed in terms stated above.
3. Respondent No. 4 in the written statement filed before Service Tribunal, took up the stand that when his services were transferred to the Government of Sindh he was already woring in Grade‑18 and at that time appellant was working in Grade‑17. Notification dated 8th April, 1986 absorbing respondent No. 4 in the Directorate of Education as Executive Engineer with 'immediate effect was withdrawn and cancelled as such created no right in favour of appellant. No seniority list for Grade‑18 had been published, therefore, appellant could not have cause of action to invoke jurisdiction of Service Tribunal. Retrospective absorption of respondent No. 4 has complete cover and protection under section 24 of Sindh Civil Servants Ad, 1973. From 11th August, 1985 he was relieved from University of Sindh and from that day he had become civil servant and, therefore, Notifications issued in his favour by the Government of Sindh were proper and valid.
4. Government of Sindh, Chief Secretary and Secretary, Education Department, impleaded before Service Tribunal as respondents, riled joint written statement and supported wholeheartedly case of respondent No. 4. According to them due to shortage of Executive Engineers and experienced hands in their department, services of respondent No. 4, already working as Executive Engineer (BS‑18) being an experienced hand were obtained from University of Sindh for posting in the same grade on deputation for two years. He joined their department on 31‑7‑1985. Being satisfied with his performance, Department recommended to the Chief Minister for his permanent absorption, but by mistake Notification dated S‑4‑1986 was issued absorbing him with immediate effect. Fresh summary was prepared by the Secretary, Education Department, which was submitted to the Chief Minister through Chief Secretary. The Chief Minister was pleased to approve absorption of respondent No. 4 from 31‑7‑1985, when' he joined Education Department and in the result earlier Notification dated 8‑4‑1956 absorbing him with immediate effect was cancelled.
5. The Service Tribunal has concluded in the impugned judgment that appeal was premature for the reason that Notification impugned in the appeal only provided for permanent absorption of respondent No. 4 with which appellant was not directly concerned and it did not violate his terms and conditions of service. Secondly, if by the impugned notification, seniority of appellant was affected, then consequential seniority list was not in the field, which could have been challenged. Service Tribunal then proceeded to examine the case in detail on merits and in the final analysis has dismissed the appeal.
6. Leave has been granted to examine the following contentions:‑‑
"(1) A civil servant aggrieved by notification which adversely affects his seniority in .a particular cadre has locus standi to question the validity of such notification.
(2) The operation of section 4 of the Sindh Service Tribunals Act is not limited to only a seniority list but covers any other final order issued by the Departmental authority affecting the seniority of a civil servant.
(3) Under section 24 of the Sindh Civil Servants Act, the Provincial Government, cannot pass any order in favour of a civil servant in violation of statutory rules adversely affecting the rights and privileges of other civil servants conferred by law."
7. We have heard at length Mr. Abdul Hafeez Memon, learned ASC for the appellant, Mr. Abdul Ghafoor Mangi, learned A.A.‑G. for official respondents and Mr. Fakhruddin G. Ebrahim, learned ASC for respondent No. 4.
8. First contention noted in the, leave granting order is that a civil servant has locus standi to challenge notification which adversely affects his seniority in a particular cadre. This contention is to be examined in the light of finding of Service Tribunal that in the absence of seniority list, cause of action does riot accrue to the appellant and on that ground his appeal was premature. We have read carefully Notification dated 22‑6‑1989, which is at page 54 of the paper book. This Notification says in unequivocal terms that respondent No. 4 is absorbed in the Education Department as Executive Engineer (B‑18) on permanent basis with effect from 31‑7‑1985. Ex facie this Notification does not provide any cause of action to the appellant for the reason that it does not say hat respondent No. 4 would rank junior to the appellant. In such circumstances it can be said that as contemplated under section 4 of the Sindh Service Tribunals Act, 1973, appeal of a civil servant is made competent only when there is a final order by departmental authority in respect of any of terms and conditions of his service. Since Notification mentioned above does not speak about terms and conditions of service of appellant but relates to those of respondent No. 4, it would be proper to say that appeal is premature in the absence of challenge to consequential seniority list. Service Tribunal has observed in the impugned judgment that during the pendency of the appeal seniority list was published by the department mentioning name of respondent No. 4 at the top and that of appellant below him but that seniority list was not challenged by the appellant. It, 'therefore, follows that since Notification mentioned above, does not speak about seniority of appellant, as such, it does not affect his terms and conditions of service and his appeal before the Service Tribunal is not maintainable as he has no locus standi to challenge that Notification. If appellant has grievance that the said Notification not directly but indirectly affects his seniority, in that case he has to wait till consequential seniority list is published or by any other final order of departmental authority he is bypassed in the promotion on that ground.
8‑A. Second contention noted in the leave granting order is that operation of section 4 of the Sindh Service Tribunals Act is not limited to only seniority list but covers any other final order issued by departmental authority affecting the seniority of civil servant. Apparently there is no cavil with this proposition which is correctly stated and legal requirement mentioned therein is that a civil servant has to satisfy the Tribunal that the final order issued by departmental authority has affected his seniority. If he is able to show that, his appeal would be maintainable and if not then his appeal would be incompetent. In the instant case Notification in question is in respect of respondent 'No. 4 and has absorbed him retrospectively. Both appellant and respondent No. 4 are Executive Engineers in Grade‑18. There is to follow either seniority list showing respondent No. 4 as senior to appellant or order of promotion to next grade in favour of respondent No. 4 bypassing appellant, which would give him reason to be aggrieved and cause of action to file appeal contending that terms and conditions of his service have been violated.
9. Third contention in the leave granting order is whether under section 24 of Sindh Civil Servants Act the Provincial Government cannot pass any order in favour of a civil servant in relaxation of statutory rules adversely affecting the rights and privileges of other civil servants conferred by law. In the instant case both appellant and respondent No. 4 were working in Universities before their induction in the Education Department. Appellant was working as a Project Assistant Engineer (BS‑17) in Agricultural University, Tando Jam, when he was deputed to serve in the same capacity in Education Department of Government of Sindh. After his selection by Sindh Public Service Commission, his appointment on deputation was converted into regular appointment (BS‑17) vide Notification dated 14th July, 1980. Appellant continued to work for 5 years in Grade‑17 and then he was cleared by Departmental Promotion Committee and was promoted to the post of Executive Engineer (BS‑18) with effect from 20‑11‑1985. On the other hand before the date of promotion of appellant to Grade‑18, respondent No. 4 was already serving as Executive Engineer (BS‑18)'in Sindh University and was transferred to Education Department of Government of Sindh vide Notification dated 11th August 1985 on deputation for a period of two years. Subsequently by Notification dated 8th April, 1986, he was absorbed permanently but this Notification was withdrawn and by subsequent Notification dated 22‑6‑1989, he was absorbed on permanent basis with effect from the date of joining the Education Department. In second paragraph of this Notification it is mentioned that previous Notification dated 8th April, 1986 absorbing respondent No. 4 with immediate effect is hereby withdrawn and cancelled. It is this Notification dated 22‑6‑1989 against which the appellant is aggrieved and he impugned it in his appeal before Service Tribunal.
10. Now dispute between the contending parties is with regard to seniority in Grade‑18 as Executive Engineers. Appellant obtained Grade‑18 by promotion on 20‑11‑1985 and on that date respondent No. 4 was already Executive Engineer in that grade and was working in the same Education Department having been brought there by transfer on 11‑8‑1985 which was about three months earlier in point of time than date of promotion of appellant. The question is of regularisation and permanent absorption of respondent No. 4 in the same grade (BS‑18). Grievance of the appellant is that services of respondent No. 4 should not have been regularised with retrospective effect from the date of his induction in Education Department which is 31‑7‑1985 because it is not allowed under the rules and secondly in such manner respondent No. 4 would rank senior to appellant who was promoted in that grade on 20‑11‑1985.
11. In the context of what is stated above, speaking legally reference can be made to Sindh Civil Servants Act, 1973, which regulates appointments and terms and conditions of service of persons in the service of Pakistan in connection with affairs of Province of Sindh. Section 6 of this Act provides, inter alia, that any appointment of a civil servant by promotion or transfer to a service or post may also be made on probation as may be prescribed. Section 7 further conrtemplates confirmation on satisfactory completion of probation as may be prescribed and also that there shall be no confirmation against any temporary post. Subsection (5) of section 7 requires that confirmation of a civil servant in a service or post shall take effect from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiating in such service or post whichever is later. Section 26 of Sindh Civil Servants Act, 1973 has empowered the Government to make such rules as appear necessary or expedient for carrying out purposes of this Act. As per rule 4 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, authority competent to make appointments to Grade‑16 and above is the Chief Minister. Rule 7 thereof further contemplates that promotions and transfers to posts in Grade 2 to 18 shall be made on the recommendation of appropriate Departmental Promotion Committee. Rule 3 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, empowers appointing authority to curtail or extend period of probation. Rule 4 thereof provides that confirmation of a civil servant shall be made in the order of seniority in the permanent post on which no other civil servant holds any lien. Rule 9(1) envisages that in each grade in a department there shall be separate seniority list of a group of civil servants doing similar and performing similar functions and for those appointments same qualifications and experience have been laid down. Rule 10(1) provides that seniority of a civil servant shall be reckoned from the date of his regular appointment. Rule 10(2) provides that no appointment made…
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