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Petitioner: SALIMULLAH KHAN and 10 others VS Respondent: RAQIB KHAN and 15 others
Court Name: Supreme Court of Pakistan Judge(s): Naimuddin, Nasim Hasan Shah, Muhammad Haleem, Shafi-ur-Rehman Title: SALIMULLAH KHAN and 10 others vs RAQIB KHAN and 15 others Case No.: Civil Appeals Nos.16-P of 1984 and 10-P of 1987 Date of Judgment:1989-04-23 Reported As: 1989 SCMR 1879 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SHAFIUR REHMAN, J.-- Leave to appeal was granted under Article 212(3) of the Constitution in two separate matters both relating to the seniority list of Executive Engineer's grade (NPS-18) of the N.- W.F.P. Irrigation and Public Health Engineering Department, to examine whether the decisions of the Tribunal dated 4-12-1983 correctly apply the law with regard to the determination of seniority of the Executive Engineers. 2. On the dissolution of West Pakistan, the N.-W.F.P. Government received from the Government of West Pakistan three categories of Junior Engineers. Assistant Executive Engineers belonging to Class-I Junior and governed by the West Pakistan Irrigation Engineers Service (Class II) Rules 1967 (hereinafter referred to as the Rules), formed one category. The second category comprised Assistant Engineers (Class I) governed by the West Pakistan Irrigation Engineers Service (Class II) Rules, 1967. The third was. The category of Temporary Assistant Engineers. 3. The first relevant change to be noticed is the notification dated 22nd January, 1972 in the following terms:- "The Governor, N.-W.F.P. Is pleased to grant with immediate effect Class I status to the Graduate Engineers serving in the Irrigation, Building, Highways and Public Health Engineering Departments who are initially appointed as Assistant Engineers or Assistant Design Engineers." ' This notification was slightly amended in April 1972 in the following words: ' In partial modification of this Department's notification of even No, dated 22-1-1972, the Governor, N.-W.F.P. Is pleased to order that Graduate Engineers on their appointment as Assistant Engineers/Junior Engineers or equivalent post either by direct recruitment or by promotion should be granted Class I status and pay."
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4. The second change to be noticed is that when the case of promotion of Assistant Executive Engineers under rule 11 of the Rules was submitted to the Governor in May, 1972, the Governor passed the following Order on 17-5-1972:- "Governor has seen and observed that since graduate engineers are now Class-I Officers, there is no need for sending their cases to the Public Service Commission. This is not a promotion from one service to another i.e,from Class II to Class-I but only a promotion within the same service i.e, from Class I Junior to Class I Senior. Hence, according to the S&GAD instructions, such cases must be placed before the Ordinary Selection Board and subsequently recommendations submitted for Governor's approval. ' In view of the fact that graduate engineers have now been given class-1 status, the recruitment rules would also require appropriate amendment." 5. Mr. Raqib Khan (respondent No,1 in CA.No,16-P/84 and respondent No,4 in C.A.No,10-P/87) who was the appellant in Service Appeal No,45/81 and respondent No,5 in Service Appeal No,53/81, before the Service Tribunal, was directly appointed in Junior Class-I on 26-11-1969 and had, prior to that from 23-7-1964 served in the WAPDA as Junior Engineer, S.D.O and Technical Officer. Some of the appellants now before us also competed either with him or before for entry into Junior Class-I but were not able to succeed though they had longer Class-II or Temporary Service in the Department. In this background when the case of promotion was processed by the Selection Board and submitted to the Governor through proper channel, the Governor decided the matter in the following words:- "Assistant XEN who have been recommended for promotion have hardly 3 to 4 years service whereas under the rules it is necessary for them to have served for at least 10 years before promotion as XEN. On the other hand, there are Temporary Assistant Engineers, who are also Engineering graduates, and who have put in service ranging from 12 to 15 years. If at all there has to be relaxation in rules it would be more appropriate in their case in view of their qualifications and experience rather than in the case of Assistant Executive Engineers who are inexperienced." 6. The matter was again gone into by the Selection Board and recommendations made to the Governor. On the 17th of September, 1973 was notified an Order in the following terms:- "The Governor, N.-W.F.P., is pleased to approve the promotion of the following Assistant Engineer's TA.E's of Irrigation Department, Government of N.-W.F.P., to the post of officiating Executive Engineers as follows:" ' The list contained the names of seven persons, namely, appellants No,1 to 5, 7 and respondent No,6. Respondent No,5 was promoted to the rank of Executive Engineer on 24-12-1974. The word "officiation" or "officiating" was not added to his name. By notification dated 29-4-1974 appellants No,2, 4, 11 and one Habibullah Qureshi were appointed as Executive Engineers from earlier dates of 19-9-1973, 18-9-1973, 16-10-1973 and 20-9-1973 respectively. Another notification issued on 21-2- 1975 to the following effect:- "In consultation with the Ordinary Selection Board, the following Assistant Executive Engineers/Temporary Assistant Engineers in the Irrigation Department are hereby promoted to the rank of Executive Engineers:- 1. Mr. Ahmad Nawaz, Assistant Executive Engineer. 2. Mr. Allah Bakhsh Baluch, Assistant Executive Engineer. 3. Mr. Hidayatullah, Assistant Executive Engineer. 4. Mr. Noor Badshah, Temporary Assistant Engineer. 5. Mr. Zafrullah, Temporary Assistant Engineer." 7. By a notification dated 16-4-1975 and on the recommendation of Ordinary. Selection Board as in the case of others, Raqib Khan respondent No,1 was promoted as Executive Engineer.
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8. Seniority Lists of the Executive Engineers were issued on 4-3-1976, 15-4-1977, 10-7-1978, 13-5-1979 and 24-6-1981. It was only the Seniority List dated 15-4-1977 and 10-7-1978 which satisfied Mr. Raqib Khan with regard to his seniority in the grade of Executive Engineer. The others were, according to him, not only not correct but seriously prejudiced his interest as he was shown junior to the persons mentioned as respondents Nos.3 to 26 before the Service Tribunal in Service Appeal No,45/81. In the seniority list of 13-5-1979 the two appellants of CA.No,10-P/87 (Service Appeal No,53/81 before the Tribunal) namely Noor Badshah Afridi and Zafarullah Khan were also shown senior to Mr. Raqib but on a representation made by him they were brought down in the list that issued on 24-6-1981. This aggrieved them and they also approached the Service Tribunal with regard to their reduction in seniority. 9. The claim of Mr. Raqib Khan for seniority was that he was appointed by selection to Junior Class I post at a time when most of respondents competed with him or before and failed. Further, according to him, under rule 11 of the Rules, he alone was eligible to be considered for promotion and not the Engineers of the other two categories. For this reason their promotion was in contravention of rule 11 applicable to the case and hence it could not be at all termed as 'regular' appointment: Another ground taken up by him was that the appointment of these respondents was expressed to be in an officiating capacity and, therefore, it could not confer any right on them for seniority. He also stated that integration of two different cadres namely, of Junior Class I and Class II was basically wrong. In any case, according to him (Mr. Raqib), he being the senior in the Junior Grade on promotion would regain his seniority over the respondents in Service Appeal No,45/81 (CA.16-P/84), as he was not superseded at any stage. 10. The other two appellants Noor Badshah Afridi and Zafarullah Khan in CA.10-P/87, claimed that they had been Assistant Engineers since 3-3-1964. They were promoted as Executive Engineer on 7- 2-1974 and have continued in that capacity. In the earlier seniority list they were shown senior but in the subsequent seniority list they were brought down and this, according to them, was not in accordance with law i.e, Section 8 of the N.-W.F.P. Civil Servants Act, 1973 (hereinafter referred to as the Act). 11. In resisting these appeals, the position taken up by the Department and the contesting respondents was that all graduate Engineers had become Class I Officers, and Mr. Raqib could not claim any preferential right by belonging to Junior Class-I. The competent authority had relaxed rule 11 in their favour and their appointment was regular. They also referred to the N.-W.F.P. Engineering Service (Bldgs & Roads Deptt., Irrigation Deptt; and Public Health Engineering Deptt.) Rules, 1973, and N.-W.F.P. Civil Servants (change in Nomenclature and Abolition of Classes) Rules, 1975, and the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, in order to make out a case of their having been rightly placed. 12. Taking up Service Appeal No,45/1981 of Raqib Khan first, the Service Tribunal expressed certain views on the matters in controversy as hereunder:- (i) "In our understanding of the matter the appellant was senior in the cadre of Assistant Engineers because he was appointed directly as Assistant Executive Engineer in Junior Class-I against a permanent vacancy whereas the respondents Nos.3 to 26 were up-graded to Junior Class-I with effect from 1-3-1972." (ii) "This position, however, changed when the appellant was not recommended by the Selection Board and subsequently ignored by the Government for promotion to the rank of Executive Engineer because he had not completed 10 year service as Assistant Executive Engineer, required under the rules then applicable, and the relaxation was not considered expedient in favour of the appellant by the Selection Board whereas respondents No,3 to 26 were promoted to the rank of Executive Engineer in 1973-1974."
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(iii) "It is a matter of law as well as common knowledge that a person senior in lower grade will retain his seniority in higher grade even if he is promoted at a latter date unless earlier promotion of his junior does not involve his supersession." The Service Tribunal also noted the following violations or features of the case amounting to violation of the rules or the principles applicable:- (i) "The appellant had joined service as Assistant Executive Engineer in Junior Class-I against permanent post in 1969 whereas the respondents were Temporary Assistant Engineers in Class-II and they were granted Class-I status (NPS-17) on account of their Graduate Degree to segregate them from Diploma Holder Assistant Engineers with effect from 1-3-1972." (ii) "Nomotion of Assistant Executive Engineer or Temporary Assistant Engineer in 1973 involved relaxation of rule 11 of the Rules then applicable. In the case of Assistant Executive Engineers, relaxation was required in the length of service while in case of Assistant Engineer, it was needed as they did not hold the post of Assistant Executive Engineer." (iii) "Rule 11 of the said Rules is relevant and applicable in cases of regular promotion to the rank of Executive Engineer on permanent basis. Its application is not relevant for promotion on officiating basis which is purely an administrative step meant for functional convenience of the Department concerned." (iv) "When the appellant's case was considered in 1973 alongwith other Temporary Assistant Engineer, he had hardly put in three (3) years of service against 10 years required under the rules." (v) "The appellant was cleared for promotion by the Ordinary Selection Board in 1973. The Chief Minister had also concurred the recommendation of the Selection Board but when the file was put up to the Governor, he did not agree to promotion of appellant." (vi) "Except in case of M/s Faqir Muhammad Khattak, respondent No,7 Muhammad Saeed Raja, resp ondent No,9 Habibullah Qureshi, respondent No,21 and Aslam Salim, respondent No,23 all other respondents were promoted in officiating capacities as Executive Engineers with effect from different dates falling between September, 1973 and February, 1974." (vii) "According to Section 8(4) of the N.-W.F.P. Civil Servants Act, 1973, seniority in a grade to which a Civil Servant is promoted, takes effect from the date of regular appointment to a post in that grade. Ad-hoc or officiating promotion is not a regular promotion for the purpose of seniority.". (viii)"It is matter of settled principle that civil servants selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade retain their inter se seniority as in the lower grade." "It is more than clearly mentioned in the minutes of the meeting of the Selection Board as well as in the notification of promotion dated 17th September, 1973 that promotion should in no way affect the inter-seseniority of the officers and without prejudice to the seniority appeals pending decisions." (x) "Frequent and repeated references have been made in the file to the N.-W.F.P. Service (Building and Roads, Irrigation & Public Health Engineering Departments) Rules 1973 while dealing with and finalizing promotion cases of the appellant and respondents, although these rules have no legal validity because they have not been approved by the competent authority or notified in the official gazette." "The appellant had joined Class-I service directly before dismemberment of one unit whereas the respondents were given junior Class-I status with effect from 1-3-1972. Therefore, for all intents and purposes, the appellant has superior claim to seniority vis-a-vis respondents 3 to 26." ' Finally, it came to the conclusion that the seniority question cannot be resolved satisfactorily "unless competent authority takes decision on certain basic issues" and concluded its judgment by observing as hereunder:-
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"We have, therefore, no other choice but to make certain observations and fix parameters for the Department to look into the matter de novo keeping in view the guidelines listed below:- (i) The seniority list already in the field has not been correctly prepared. It has, therefore, no validity. For drawing the correct order of seniority it would be necessary to:- (a) Determine the cadre strength year-wise since 1967. (b) The absorption of all officers in the cadre in accordance with the provision of rules 7, 8 and 9 of the West Pakistan Irrigation Engineers Service (Class-I) Rules, 1967 on 1-7-1970 when one unit was broken or 1-3-1972 when Assistant Engineers were up-graded to the status of Junior Class-I (NPS- 17). (c) The officers of the two categories in excess of their due share cannot claim seniority because they cannot be said to have been recruited in the service. They at the most can be taken as persons officiating in the service without having been appointed to service. (d) No one should be regularly promoted unless he has completed the required length of service under rule 11 of Rules, 1967. (e) The rules framed in 1973 are no rules because they have not been notified. They should not be referred to or taken notice of while fixing seniority. In view of the facts mentioned above, the appeal is accepted to the extent that the impugned seniority list has not been correctly prepared and as such it has no legal validity. The parties are left to bear their own costs." 13. In the other appeal of Noor Badshah Afridi and Zafarullah Khan (Service Appeal No,53/1981 before the Tribunal) the claim of seniority was denied to them by observing as hereunder:- "As regards promotion to the rank of Executive Engineer, the perusal of the promotion order would show that the appellants were promoted in officiating capacity on ad hoc basis with effect from 7- 2-1974. Unless they are promoted on regular basis, they are not entitled to seniority with effect from 7-2-1974. In the seniority list issued on 13-5-1979, the appellants were shown senior to respondents No,2 to 5 on the basis of their ad hoc promotion to NPS-18. This list was obviously wrong. The real and relevant date for the purpose of seniority is 14-2-1975 when the appellants were promoted regularly to NPS grade-18 In view of rule 8(4) of the N.-W.F.P. Civil Servants Act, 1973 and numerous decisions of this Tribunal and other superior Courts, the respondents No,2 to 5 are senior to the appellants in the cadre of Executive Engineers because they were senior in the lower grade and were cleared for promotion alongwith the appellants in the same batch." ' Their appeal was, therefore, dismissed. Reference was, however, made to the decision made in Raqib Khan's appeal whereby a revised seniority list had been ordered to be prepared. 14. Mr. S.M.Zaffar, Senior Advocate, the learned counsel for the appellants in CA.16-P/84 pointed out that some of the parties involved in the seniority list of Executive Engineers had died, others had retired and some of the respondents transposed as appellants and proceeded to argue that the Governor had competently relaxed rule 11 and that the promotion of the appellants was regular and that the Department had rightly given them seniority over Mr. Raqib. The seniority list finally prepared and brought for scrutiny before the Service Tribunal was, according to the learned counsel, in conformity with section 8 of the Civil Servants Act. 15. Mr. Bashir Ahmad Ansiri, Advocate, representing Mr. Abdul Hameed Khan, respondent No,14 (renumbered from 18) has stated that being an Assistant Engineer since 1965 in the Agriculture Development Corporation and being protected under Presidential Order No,5 of 1972 he was entitled to seniority over others and in the order passed by the Tribunal for redrawing of that seniority list due weightage will be given to his rights and, therefore, he supports the Order of the Tribunal. 16. The Additional Advocate-General of the Province (N.-W.F.P.) took up the position that the seniority list prepared was strictly in accordance with the rules and the law on the subject and no interference was called for.
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17. Mr. Fakhruddin G. Ebrahim, Senior Advocate, representing Mr. Raqib, the respondent No,1 who was the appellant before the Service Tribunal in Service Appeal No,45/81 took up the position that the promotion of the appellants was altogether illegal under rule 11 because they were not Assistant Executive Engineers and not at all in the Junior Scale of that service and could not be promoted. He also took up the plea that there was no question of relaxation of this rule in their favour under rule 18 because the Government had to exercise that power and not the Governor and also it had to be exercised in individual cases and not for the benefit of a group. Besides, jurisdictional requirement for the exercise of such a power was the element of hardship which was totally absent in their case. It has further been contended that respondent No,1 being senior in the junior grade irrespective of the date of his promotion he will regain his seniority on promotion because the promotion by relaxation of the rules does not amount to his supersession as such. Besides, the promotion was in an officiating capacity which has been rightly treated by the Tribunal to be not regular. The learned counsel has finally drawn our attention to decision given in the case of Muhammad Iqbal and another v. Secretary to Government of Punjab and 37 others (1986 SCM R 1) where a similar question arose in the Province of Punjab in respect of the same rules and the decision was given in terms as have been given by the Service Tribunal. The redrawing of the list of seniority in accordance with the rules applicable is, according to the learned counsel, the requirement of the situation and the case. 18. It is correct that earlier, in the case of Muhammad Iqbal and another, similar questions were raised and dealt with by this Court. The judgment given in that case would have justified more the Orders of the Tribunal rather than any other. However, in the two appeals now before us, there are three distinctive features which, so to say, take care of the short-comings or deficiencies noted in the earlier case. The first is that subsequent to the conferment of Class-I status on Graduate Assistant Engineers and Temporary Assistant Engineers their encadrization has taken place under the orders of the Governor. Therefore, what was not achieved by the conferment of Class-I status, was achieved by such encadrization. The second is that when the promotions took place in the reported case, Rules of 1967 were in force and applicable to parties, but when the seniority list came to be prepared, rules framed by the N.-W.F.P. Government in 1973 had come into the field. Section 8 of the Act expressly lays down that "nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be." This provision of law has rendered otiose the decision of this Court given in the case of Bashir Ahmad Khan PLD 1960 SC 195, where it was held that "every officer in a graded service has a vested right to a proper place in the seniority." If the Service Rules affecting seniority have been competeraly framed, then none can claim a vested right by reference to an earlier Service Rule on the subject. The third distinctive feature of these two appeals is that the vacancies which were required to be filled had occurred after the enforcement of 1967 Rules and in some cases even after the enforcement of 1973 Rules. In the reported case the vacancies which were to be handled and the seniority determined were also of the period prior to the period of 1967 Rules for which the compartmentlization was provided for in the Rules and the vacancies had to be filled up by reference to the period during which they had occurred. More must be said in respect of each of these distinctive features of these appeals. 19. The Governor by his order dated 17-5-1972 dispensed with the requirement of the Rule of sending the cases of Temporary Engineers and Assistant Engineers to the Public Service Commission for absorption in Junior Class-I or other equivalent posts in the Class-I service. By the same Order the Governor directed that such officers, after having been conferred the status ofd Class-I, should be treated as members of the Junior Class-I service to which Mr. Raqib belonged. It was thereafter a case of promotion from within the service from the junior to senior scale, the requirement of the Rule being that a direct, recruit should have rendered 10 years service while
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those inducted otherwise 12 years. Applying requirement of the Rule, after such an order of the Governor, the appellants having completed at that time more than twelve years service, were fully eligible for being considered for promotion. It appears that even after this Order of the Governor dated 17-5-1972, the Department and the Government itself, was not treating these Officers as belonging to one service and the case as one of promotion from junior to senior scale. Ignoring the legal effect of this Order, the Department continued processing cases in manner as if the case of the absorbed officers also required relaxation of the Rules they being outside the service. The relaxation Order reproduced in para 5 was uncalled for and totally out of place after the order had been passed by the Governor on 17-5-1972. In the case of Mukhtar Ahmed PLD 1971 SC 846 a similar order of the Governor had intervened. By reference to Article 178(2) of 1962 Constitution, the Court held as hereunder:- "It is true that the appellants, at the time of their interview by the Public Service Commission, did not possess either of the qualifications prescribed in the said rule 7. But the relevant Government file which has been produced before us by the learned Assistant Advocate-General reveals that the selection of the candidates by the Public Service Commission for training and eventual appointment as Assistant Agricultural Engineers was authorised by the Governor's own order, dated the Ist June 1965 Thus, the order of the Governor dated the Ist June, 1965, by which he approved the method of selection of candidates for appointment as Assistant Agriculture Engineers after their successful completion of the training, is an order having the statutory force. Clause (2) of Article 178 of the 1962 Constitution empowers the Governor to make rules relating to recruitment to civil service and civil posts in connection with the affairs of the Province. This clause does not provide that the recruitment rules are to be made in any particular manner, nor does it require previous publication of the rules in the official Gazette. That being so, the Governor's order, dated the…
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