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Petitioner: Ch. MAHMOOD AKBAR, SUPERINTENDENT JAIL, DISTRICT JAIL, FAISALABAD VS Respondent: Ch. MUHAMMAD AFZAL, SUPERINTENDENT JAIL, SIALKOT
2002 P
2002 P. L C (C.S.) 1313
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ
Ch. MAHMOOD AKBAR, SUPERINTENDENT JAIL, DISTRICT JAIL, FAISALABAD
versus
Ch. MUHAMMAD AFZAL, SUPERINTENDENT JAIL, SIALKOT and 2 others
Civil Petition No. 1789 of 1996, decided on 13th June; 2001.
(On appeal from judgment dated 20‑1I0‑1996 passed by the Punjab Service Tribunal, Lahore in Appeal No. 267 of 1995).
(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑
‑‑‑‑R. 8(1)(b), Expln. I‑‑‑Punjab Civil Servants Act (VIII of 1974), Ss. 7,8 & 9‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑ Promotion‑‑‑Seniority‑‑‑Respondent while serving as Deputy Superintendent Jail was transferred and posted on 21‑12‑1989 as Superintendent Jail on his own pay and scale, and was promoted as Superintendent on 1‑9‑1994‑‑‑Respondent claimed promotion w.e.f. 21‑12‑1989 for having been working as Superintendent since then, but department dismissed his representation‑‑‑Service Tribunal accepted respondent's appeal by granting him pay and allowances, privileges and status of the post of Superintendent w.e.f. 21‑12‑1989‑‑‑Petitioner's contention was that he being senior to respondent was not made party in appeal; and that Tribunal had erred in conferring the status and privileges of the post of Superintendent on respondent w.e.f. 21‑12‑1989, which had amounted to granting him promotion from said date‑‑‑Supreme Court granted leave to appeal to consider said contentions of petitioner.
(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑
‑‑‑‑R. 8(1)(b), Expln. I‑‑‑Punjab Civil Servants Act (VIII of 1974), Ss. 7, 8 & 9‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑ Promotion‑‑‑Seniority‑‑‑Respondent while serving as Deputy Superintendent Jail was transferred and posted on 21‑12‑1989 as Superintendent Jail on his own pay and scale, and was promoted as Superintendent on 1‑9‑1994‑‑‑Respondent claimed promotion w.e.f. 21‑12‑1989 for having been working as Superintendent since then, but department dismissed his representation‑‑‑Service Tribunal accepted respondent's appeal in view of the concession made by District Attorney that respondent was entitled to pay and allowances, privileges and status of the post of Superintendent w.e.f. 21‑12‑1989‑‑‑
Validity‑‑‑Appellant had not been impleaded as party by respondent before Tribunal‑‑‑Explanation I to proviso to cl. (b) of sub‑rule (1) of Rule 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was not brought to bear by Tribunal upon facts and circumstances of present case‑‑‑Tribunal had not considered the concession made on respondent regarding out of turn promotion and relaxation of rules being not applicable to his case‑‑‑District Attorney had no authority to make any such concession, which had all the potentialities of adversely affecting the rights of a substantial number of employees contrary to R 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑Tribunal had erred in law in sanctifying said concession of District Attorney‑‑‑Supreme Court accepted the appeal and partially set aside impugned judgment by declaring that grant of the status and privileges of the post of Superintendent Jail (B‑17) w.e.f. 21‑12‑1989 to respondent would not adversely affect the rights of appellant and other Superintendents Jail in B‑17, who were senior to respondent.
Muhammad Ramzan and others v. Member (rev.)/CSS and others 1997 SCMR 1635 ref.
Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑ on‑Record for Appellant.
Respondents: Ex parte.
Date of hearing: 13th June, 2001.
JUDGMENT
CH. MUHAMMAD ARIF, J.‑‑‑The relevant facts as also the question of law involved in this case stand succinctly recorded in the leave granting order dated 19‑11‑1996, which reads thus:‑‑
"By order dated 21‑12‑1989, Ch. Muhammad Afzal respondent, Deputy Superintendent, Central Jail, Sahiwal was transferred and posted as Superintendent, District Jail, Sargodha in his own pay and scale. He was promoted as Superintendent Jail (BS‑17) vide order dated 1‑9‑1994. On his promotion, he submitted a departmental representation claiming that since he had been working as Superintendent Jail since 21‑12‑1989, he was entitled to be promoted with effect from the said date. His representation was rejected on the ground, inter alia, that 'As none of juniors to Ch, Muhammad Afzal was promoted, therefore, his case is not covered under the pro forma promotion policy'. He then preferred an appeal before the Service Tribunal which has been accepted with the observation that the learned Deputy Attorney had no objection to the contention of the learned counsel for the appellant that the appellant is entitled to the pay and allowances, privileges and status of the post of Superintendent Jail w.e.f. the date actually working as such i.e. 21‑12‑1989."
(2) Learned counsel appearing in support of this petition has contended that the petitioner was senior to respondent No.1 but he was not made a party in the appeal filed by the said respondent. Learned counsel has further submitted that the petitioner has no grievance insofar as the pay and allowances of the post of Superintendent Jail have been granted to respondent No. l but the learned Tribunal has erred in conferring the status and privileges of the post of Superintendent Jail on the said respondent with effect from 21‑12‑1989 which amounted to granting him promotion from that date. This contention needs consideration. Leave to appeal is accordingly granted. Operation of the impugned judgment or the Tribunal to the extent that it granted the status and privileges of the post of Superintendent Jail to the respondent is suspended."
2. Ch. Mushtaq Masood, learned Advocate Supreme Court for the appellant has reiterated the pleas noticed in the leave granting order to the effect that ....()) his client was senior to respondent‑Ch. Muhammad Afzal but was not made a party in the appeal before the Punjab Service Tribunal, hereinafter referred to as the Tribunal ,...(ii) he has no grievance in so far as the pay and allowances of the post of Superintendent Jail have been granted to respondent‑Ch. Muhammad Afzal...and (iii) the Tribunal is in error in conferring the status and privileges of Superintendent Jail on respondent No. 1. w.e.f. 21‑12‑1989, which amounts to granting him promotion from that date?..
In addition to the above points, the learned counsel has also objected to the Tribunal proceeding with the conferment of the status and privileges of the post of Superintendent Jail on respondent‑Ch. Muhammad Afzal on the alleged concession made by the learned District‑Attorney to the effect that respondent No.1 "... is entitled to pay and allowances, privileges and status of the post of Superintendent Jail w.e.f. the date he was actually working as such i.e. 21‑12‑1989." Referring to Explanation I to the proviso to clause (b) of sub‑rule (1) of rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, hereinafter referred to as 1974‑Rules, it was contended that respondent No. 1, being junior to the appellant in BS‑16, his promotion to B‑17 "... on‑ad hoc basis in the public interest even though continuing later permanently in the higher grade would not adversely affect the interest of his seniors m the fixation of his seniority in the higher grade " (emphasis supplied). He has also referred to the admitted position. that his client (as also another) was promoted on regular basis on 25‑2‑1992. Respondent No. l (i) marked his time; (ii) did not challenge the consequential seniority position of the appellant and (iii) made Departmental Appeal against the alleged refusal by the Department to promote him as above on 1‑9‑1994, only on 29‑9‑1995. After the rejection of his Departmental Appeal on 20‑3‑1995, the respondent filed Appeal No.267 of 1995 before the Tribunal on 12‑4‑1995, and that too without impleading appellant‑Ch. Mahmood Akbar as party.
3. The learned counsel referred to Muhammad Ramzan and others v. Member (Rev.)/CSS and others (1,997 SCMR 1635) in support of his contention that the learned District Attorney was not possessed of any authority whatsoever to make the concession before the Tribunal to the effect that respondent No. l (appellant before the Tribunal) was"... entitled to the pay and allowances, privileges and status of the post of Superintendent Jail w.e.f. the date he was actually working as such i.e. 21‑12‑1985 " He pressed into service para.28, appearing at page 1668 of the Report in Muhammad Ramzan (supra), which reads thus:‑‑
28. Thus, following the dictum in aforequoted cases and looking to glaring disregard of law and earlier decisions of this Court, we are inclined to hold that disposal of petition by Lahore High Court based on illegal and tainted concession of Settlement Department is devoid of lawful authority and subsequent direction for its implementation is equally coram non judice, as such ‑has no binding effect.
4. Respondents in this case are ex parse.
5. The arguments addressed at the Bar in support of this appeal are not without force. It is not the case of anybody that the appellant was impleaded as party by respondent‑Ch, Muhammad Alzal before the Tribunal. Explanation I to the proviso the clause (b) of‑sub‑rule (1) of rule 8 of 1.974?Rules was not brought to bear by the Tribunal upon the facts and circumstances of the instant case.
6. The Tribunal did notice the concession made on behalf of respondent No.1 before it (as appellant) regarding (i) out of turn promotion and (ii) relaxation of rules being not applicable to his case. However, while noticing respondent's contention that the condition of 'own pay and scale' was illegal, it made a reference to the learned counsel of respondent‑Ch. Muhammad Afzal having taken the following stand in his written arguments:‑‑
"That according to the Government instructions dated‑ 17‑5‑1982 and 17‑8‑1988 printed at pp. 146 and 147 of ESTACODE 1991 Edn. the condition own pay and scale has no meaning in law. Even according to the law laid down by the Hon'ble Tribunal in judgment dated 19‑9‑1994 in Appeal No.971 of 1993 upheld by Supreme Court in their judgment dated 6‑12‑1995 in Civil Petition No. 137‑L of 1994 and reported as 1996 PLC (CS) 627 an illegal stipulation of "purely temporary" laid down in the order of appointment was ignored and appointment was approved. Similar view has been taken by this Hon'ble Tribunal in judgment dated in cases of Noor Hussain and others (Inspectors Police) wherein the illegal condition "ad hoc" imposed in promotion order was held to be illegal and promotion was held to be 'substantive.'
We find that beyond reproduction of the above excerpt from the written arguments, the Tribunal did not proceed any further to resolve the issue even then. It was in the penultimate paragraph of the impugned judgment that the Tribunal held as under:‑
7. The learned District Attorney had no objection to the‑contention of the learned counsel for the appellant that the appellant is entitled to the pay and allowances, privileges and status of the post of Superintendent Jail w.e.f. the date he was actually working as such i.e. 21‑12‑1989."
The learned counsel is quite right in contending that the learned District Attorney had no authority whatsoever to make any concession as above in that it had all the potentialities of adversely affecting the rights of a substantial number of employees contrary to the very words of rule 8 (ibid). We are of the considered opinion that the Tribunal was in error of law in C sanctifying the alleged concession of the District Attorney that the pay and allowances,, privileges and status of the post of Superintendent Jail with effect from 21‑12‑1989 was the 'entitlement' of respondent‑Ch. Muhammad Afzal.
7. The above are the reasons for our short order of even date which reads thus:‑‑
"For reasons to be recorded, the impugned judgment of the‑Punjab Service Tribunal is partially set aside and it is declared that the grant of the status and privileges of the post of Superintendent Jail B‑17 with effect from 21‑12‑1989 to respondent No.1 shall not adversely affect the rights of the appellant, as also other Superintendents Jail in B‑17 who are senior to respondent No.1. ?????????
"2. To the above extent the appeal is allowed with no order as to costs."
S.A.K./M‑347/S ???????????????????????????????????????????????????????????????????? Appeal allowed.