Full Judgment Text & Judicial Ruling

2012 P L C (C.S.) 1 [Punjab Service Tribunal] Before Justice (R) Muhammad Jehangir Arshad Chairman MUHAMMAD ASIF CHATHA Versus CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 27 others

Service Appeals Nos.2933, 2934, 2935, 2936, 2939, 2941, 2942, 2943, 505, of 2005, 441, 500 to 504 and 591 of 2006 decided on 25th November, 2011.

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.13---Promotion on officiating basis---Appellants who possessed B.Sc. Engineering degree, initially were promoted between the years 1995-1998 to the posts of Assistant Engineers in BS-17 on officiating basis, whereas respondents were promoted in the year 2001 to said posts on regular basis---Appellants challenged such promotion of respondents in constitutional petition and High Court directed the competent Authority to decide the controversy in accordance with law after hearing the parties---Supreme Court upheld order of High Court and remanded case to competent Authority and competent Authority declared promotion of appellants as regular promotion with effect from date of their officiating promotion---Said order of competent Authority was assailed in appeal by the respondents before Service Tribunal and Tribunal set aside order of competent Authority with direction to take fresh hearing for determination of the dispute---Competent Authority ordered that there were no basis for considering the officiating promotion of appellants to be regular promotion and appellants could not be considered as regular promotees---Appellants had filed appeals before the Tribunal---Since 1995 to 2002, three seniority lists were issued and appellants, never challenged the said seniority lists---Promotion of appellants being in accordance with the provisions contained in R.13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, unless same was regularized through proper channel, appellants could not be deemed to be promoted on regular basis---In terms of said Rule 13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 officiating promotion neither would confer any right of promotion on regular basis, nor a civil servant could claim any promotion on regular basis because of his officiating promotion---Contention of counsel for the appellants, that promotion of the appellants in fact through order was on regular basis and that the condition of promotion on acting charge basis was either superfluous or without legal justification was repelled---Promotion of appellants on acting charge basis was quite lawful and in line with provisions contained in R.13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Appellants, in circumstances, could not ask for declaration that their promotion be considered on regular basis---Respondents, who were senior to the appellants, were also holding requisite qualifications at relevant time for promotion as S.D.O. (BS-17), they were validly considered/promoted on regular basis. 1993 SCMR 609; 1996 PLC (C.S.) 677 (SC); 1981 PLC (C.S.) 731; 1982 SCMR 408; 1983 PLC (C.S.) 247; 2000 SCMR 1546; 1985 SCMR 1158; 1990 SCMR 1623; PLD 1990 SC 725; 1985 SCMR 699; 2004 SCMR 630, 2005 SCMR 716; 2003 PLC (C.S.) 1357; 2011 SCMR 676; 2009 PLC (C.S.) 527; 1998 SCMR 215; 2010 SCMR 1301; Dr. S.M. Inkisar Ali v. Government of Sindh and others 2011 SCMR 121; Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan and another PLD 1970 Quetta 115; PLD 1995 SC 701; 2010 SCMR 450; 1995 SCMR 1229; Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882; Dr. Anwar Ali Sahto v. Federation of Pakistan and others PLD 2002 SC 101; 2006 SCMR 453; 2010 SCMR 676 and PLD 1996 SC 845 ref. Tariq Aziz ud Din and others in re:- Human Rights's case 2010 SCMR 1301; Dr. S.M. Inkisar Ali v. Government of Sindh and others 2011 SCR 121; Altaf Ahmad and others v. Secretary to Government of Punjab, Irrigation Department, Lahore and others (C.P. No.1583 of 1998); Raja Zafar Mehmood v. Director General Agriculture (Field), Punjab, Lahore and others Appeal No.4288 of 2010; 2003 PLC (C.S.) 212; 1985 PLC (C.S.) 26; PLD 1991 SC 1118; PLD 2003 SC 175 and 1995 SCMR 1229 rel.

(b) Punjab Civil Servants Act (VIII of 1974)---

----Ss. 8 & 21---Promotion---Right of appeal---Question of limitation--- Service Tribunal being the only forum for determination of terms and conditions of a civil servant before approaching that Tribunal, civil servant had to satisfy the legal requirements, especially question of limitation with reference to S.21 of Punjab Civil Servants Act, 1974. Qasim Wasti and others v. Secretary to Government of Punjab, Revenue Department, Board of Revenue, Lahore and others 2009 SCMR 1204=2011 PLC (C.S.) 997 rel. Hafiz Tariq Nasim for Appellants (in Service Appeals Nos.2933, 2934, 2935, 2936, 2939, 2940, 2941, 2942 and 2943 of 2005). Zahid Hussain Khan for Appellant (in Service Appeals No.2951 of 2005). Masud Ahmad Riaz for Appellants (in Service Appeals Nos.441, 500, 501, 502, 503, 504, 505(?) and 591 of 2006), Humayun Akhtar Sahi, Dy. District Attorney for Respondents. Dr. A. Baist for private Respondents Nos.3 to 19. Mrs. Rizwana Anjum Mufti for private Respondents Nos.20 to 22 and 24 to 28. Respondent No.23 in person. Khalid Saleem, Law Officer on behalf of C&W Department, Lahore. Dates of hearing: 6th, 17th, 18th, 19th and 20th October, 2011.

JUDGMENT

JUSTICE (R) MUHAMMAD JEHANGIR ARSHAD (CHAIRMAN).--- Since common questions of law and facts are involved in following appeals, hence the same are being disposed of through this single order:--- (i) Muhammad Asif Chatha v. Chief Secretary and others (Service Appeal No.2933 of 2005); (ii) Farooq Hassan v. Chief Secretary and others (Service Appeal No.2934 of 2005); (iii) Muhammad Musa v. Chief Secretary and others (Service Appeal No.2935 of 2005); (iv) Muhammad Shafique v. Chief Secretary and others (Service Appeal No.2936 of 2005); (v) Imtiaz Ali v. Chief Secretary and others (Service Appeal No.2939 of 2005); (vi) Muhammad Saeed Sial v. Chief Secretary and others (Service Appeal No.2940 of 2005); (vii) Intisar Ali v. Chief Secretary and others (Service Appeal No.2941 of 2005); (viii) Zahid Irshad v. Chief Secretary and others (Service Appeal No. 2942 of 2005); (ix) Zaheer ud Din Babar v. Chief Secretary and others (Service Appeal No.2943 of 2005); (x) Muhammad Shabbir Hussain Kamboh v. Secretary, Communication and Works Department, Lahore and others (Service Appeal No.2951 of 2005); (xi) Fateh Muhammad v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No.441 of 2006); (xii) Tariq Mahmud Cheema v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No.500 of 2006); (xii) Muhammad Faryad v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No.501 of 2006); (xiv) Muhammad Tariq Saeed v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No. 502 of 2006); (xv) Fawad Munir Khan v. Secretary to Government of Punjab, C& W Department, Lahore and others (Service Appeal No.503 of 2006); (xvi) Rana Iqbal Ashraf v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No.504 of 2006); (xvii) Muhammad Sarwar Sabir v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal ` (xvii) Syed Adeel Haider v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No.591 of 2006). 2. All these appeals have been filed for seeking following relief:--- "In view of the above, it is most respectfully prayed that the impugned orders dated 27-7-2005 and the order 12-6-2007 and 1-1-2011/8-1-2011 may kindly be set aside qua the appellant and the appellant's promotion to the post of S.D.O. in 1995 may kindly be declared as regular promotion against 15% promotion quota for Sub-Engineers holding B.Sc. (Engineering) degree for all purposes." 3. For the proper understanding of the matter in dispute the facts giving rise to all these appeals briefly stated are as under. 4. All the appellants who were Graduate Engineers possessing B.Sc. Engineering Degree were promoted between 1995 to 1998 to the post of Assistant Engineer/SDO in BS-17 on officiating basis whereas private respondents were promoted in the year 2001 to the post of Assistant Engineer/SDO (BS-17) on regular basis. Writ Petitions Nos.15893 of 1999, 1823 of 2001, 2014 of 2001, 7668 of 2001 and 17792 of 2001 were filed challenging the promotion of private respondents on regular basis. All the above noted writ petitions were finally decided by the Hon'ble Lahore High Court, Lahore on 24-1-2002 in the following terms:--- "For these reasons, intervention of this court at this juncture is declined. It is directed that the Competent Departmental Authority will decide the controversy in accordance with law after hearing both the affected parties and after investigation of necessary facts." Intra-Court Appeal No.98 of 2002 was filed to assail the above noted judgment of learned Single Bench of Hon'ble Lahore High Court, Lahore but the same was also rejected on 7-2-2010. The above noted judgment passed in I.C.A. was further challenged before the apex court through C.P. No.519-L of 2002 which was also disposed of by observing "No need to pass any such order. The case has been remanded to the departmental authority and the departmental authority shall proceed in accordance with law." 5. In the light of above noted determination upto the apex court the matter was taken up by the competent authority/Secretary to Government of Punjab, Communication and Works Department, Lahore who vide order dated 18-12-2002 decided the matter holding in the following terms:--- "Keeping in view the above facts and availability of regular posts of AE/SDO in 1995-98 at the time of promotions on officiating basis and in view of advice of Regulation Wing of S&GAD, the competent authority has decided that the officiating promotion of the appellants are on regular basis for all purposes. So the officiating promotions of these SDOs made during 1995-98 are hereby declared as Regular Promotion with effect from the date of their officiating promotions. It is further ordered that the regular promotion of private respondents promoted in the year 2001 is hereby converted to promotion on officiating basis. However, they shall continue to work as SDO in view of shortage of officers till regular incumbents become available or they are promoted as such on regular basis whichever is earlier." 6. The above noted order of competent authority was assailed before this Tribunal through consolidated Appeals Nos.845, 939 to 944, 1009, 1060, 1061, 1063 of 2003 and this Tribunal disposed of all the above noted appeals on 10-12-2003 in the following terms:--- "Even if the representation is joint, which is not so in the case of Arshad Mehmood, in Appeal No.845 of 2003, each and every representationist has to be summoned and if each one of them desires to be heard individually chance is to be allowed but if they choose one person to be their spokesman the authority hearing them has to reduce in writing consent of others to be signed by every one of them. A vague reference in the impugned order that the raps (should be rep.) is not sufficient compliance with the norms and rules of natural justice. Except Rafaqat Ali Chatha appellant, other appellants in different appeals were not heard which has rendered the order dated 19-12-2002 passed by the Lahore High Court, Lahore wherein the competent departmental authority was specifically directed to act in accordance with law after hearing both the affected parties. Resultantly the order dated 18-12-2002 passed by Secretary, Government of the Punjab, Works and Communication Department, Punjab is set aside. A fresh hearing shall be taken up for determination of the dispute. Each and every appellant and private respondents would be summoned and hearing will be extended to all. View points and contentions raised would be recorded and thereafter giving reasons the matter would be disposed of through a speaking order within 60 days from the date, respondent No.2 receives this judgment. The appeals are accepted in the aforesaid terms." 7. After the above noted judgment of this Tribunal when the matter was remitted to the competent authority, the competent authority vide order dated 27-7-2005 passed following order:--- "On the basis of the above mentioned facts, it is hereby ordered that there is no basis for considering the officiating promotion of Sub-Engineers holding B.Sc. (Engineering) degree as Assistant Engineers/Sub Divisional Officers, between 20-4-1995 to 5-11-1998, as regular promotion because promotion can only be granted with immediate effect and cannot be granted with effect from an earlier date. The Sub-Engineers holding B.Tech (Hon) degrees were accorded the right to be considered for promotion through amendment in the Punjab Communication and Works Department (Engineering Posts Qualifications and Conditions for Recruitment) Rules, 1985 on 16-12-2000. Such Sub-Engineers cannot claim any right towards promotion as Assistant Engineers/Sub Divisional Officers prior to 16-12-2000. Moreover, in view of subsection (4) of section 8 of Punjab Civil Servants Act, 1974, since promotion cannot be granted from an earlier date, there is no basis for the claim of any such Sub-Engineer that he should be granted such promotion from an earlier date." 8. The appellants feeling aggrieved against the above noted order of competent authority filed departmental appeals but as the same were not being decided within statutory period, therefore, after expiry of statutory period of 90 days, present appeals were filed. 9. It would not be out of place to mention here a very important point rather an act of civil servant amounting to mockery of law that during the pendency of these appeals one Muhammad Siddique, Section Officer in the office of Secretary C&W Department, Lahore instead of putting departmental appeals before the appellate authority/Chief Secretary opted to decide these appeals of his own on 28-12-2005. The above noted aspect of the matter came to the notice of this Tribunal on 18-2-2009 when original record was produced before the Tribunal by Mr. Humayun Akhtar Sahi, Deputy Director(Law) on behalf of C&W Department. In this view of the matter, following order was passed by this Tribunal on 18-2-2009:--- As directed on the last date of hearing i.e. 23-1-2009 Mr. Hurnyun Akhtar Sahi, Deputy Director (Law) has produced the original record which has been perused. The reasoning for summoning the original record was that from the perusal of the copy of the order dated 28-12-2005 appended with the appeal it prima facie appeared to us that the departmental appeal was never put up before the competent departmental authority and the said order was passed by Muhammad Siddique, Section Officer (E-III) on his own. Today, when the original record was produced and perused, our apprehension found correct and it is evident that on the departmental appeal filed by the present appellant the said Section Officer in para 17 of the noting part without either putting the same before the competent departmental authority or obtaining instructions oral or in writing by the said authority of his own proposed that the representation made by the Sub-Engineer may be rejected and the said noting(?) was considered as an order dated 28-12-2005 now impugned in this appeal. Mr. Humayun Akhtar Sahi, Deputy Director (Law) on the basis of record admits that said appeal was never put up before the competent departmental authority. We are, therefore, satisfied that the appeal filed by the appellant against the order of the competent authority dated 27-7-2005 was never put up before the competent departmental authority, hence, to be deemed pending. Resultantly, we direct the departmental appellate authority (Chief Secretary Punjab) to decide the appeal of the appellant within 60 days from the receipt of this order after affording opportunity of hearing to all the parties concerned and the departmental appellate authority shall also decide the appeal in the light of order passed by this Tribunal in Appeals Nos.845, 939 to 944, 1009, 1060, 1061 and 1063 of 2003 on 10-12-2003. We would also like to issue notice to Muhammad Siddique, Section Officer (E-III), directing him to appear in person on the next date of hearing and submit written explanation as to why he should not be burdened with heavy cost and also not be recommended for initiation of departmental proceedings against him for passing the order dated 28-12-2005 without any authority and also for wasting precious time of the Tribunal as well. This order shall be communicated to him by Mr. Humayun Akhtar Sahi present in court. On receipt of the final order by the Chief Secretary, Registrar of this Tribunal shall put up the same before the Chairman in chamber for appropriate orders about the next date of hearing." 10. Pursuant to the above noted order of this Tribunal the matter was finally decided by the Chief Secretary, Govt. of Punjab on 1-1-2010 whereby departmental appeals filed by the appellants were rejected. The learned Counsel for appellants on getting knowledge of the above noted order with the permission of court filed amended memo. of appeal by including challenge to the above noted order of the Chief Secretary/ appellate authority also. 11. Mr. Masud Ahmad Riaz, Advocate, learned counsel for the appellants (In Service Appeals Nos.441 of 2006, 500 to 505(?) of 2006 and 591 of 2006) addressed main and detailed arguments which are summarized below:--- (i) The promotion granted to the appellants from 1995 to 1998 was in fact regular promotion and insertion of condition "On officiating basis" was neither justified nor legal. The contention is that since the promotion of appellants had been made in the prescribed manner, therefore, the same could be deemed regular under section 2(2) of the Punjab Civil Servants Act, 1974. Learned Counsel in support of his contention placed reliance on the cases of PLD 1970 Quetta 115, 1993 SCMR 609, 1996 PLC (C.S.) 677 (SC), 1981 PLC (C.S.) 731, 1982 SCMR 408, 1983 PLC (C.S.) 247 and 2000 SCMR 1546. Learned Counsel further argued that as the condition of "officiating basis" was illegal, therefore, the same be set aside/deleted from the promotion order as held by the apex court in 1998 SCMR 215. (ii) Since 1995 till 1998 the relevant qualification of private respondents for promotion was lacking and it was for the first time when relevant rules i.e. Punjab Communication and Works Department (Engineering Posts Qualification and Conditions for Recruitment) Rules, 1995 were amended on 16-12-2000 and in the schedule annexed with the rules, the qualification of B.Tech (Hons) Degree was also included in the relevant column of qualification for promotion as SDO/Assistant Engineer, therefore, they could not be promoted as SDO/Assistant Engineer in the year 2001 because at that time they were neither holding minimum qualification nor fulfilled the requirement of registration as professional engineers with Pakistan Engineering Council. According to learned Counsel if a civil servant is lacking the requisite qualification for promotion neither he could be promoted before the fulfillment of said qualification nor his promotion even if granted without fulfilling the requisite condition would be justified by some subsequent event. To support his contention learned Counsel has placed reliance on 1985 SCMR 1158, 1990 SCMR 1623 in this respect. (iii) Another argument of learned counsel is that as the promotion of appellants was against available vacancies, therefore, there was no justification for the competent authority to have promoted the appellants by adding the word "officiating basis" because a civil servant has a right of promotion from the date of occurrence of vacancy and also eligibility existing on the date of vacancy as held by the apex court in 1990 SCMR 1623. Learned Counsel further argued that at the relevant time the private respondents were senior to the appellants yet their promotion from 15-9-2001 as SDO would neither confer any seniority on them over the appellants who were promoted in the year 1995 nor the private respondents could be considered senior over the appellants as the appellants fulfill the requirements regarding qualification as well as experience etc. qua the respondents. Learned Counsel argument is that as the private respondents were not eligible in the year 1995 as against the appellants and acquired their eligibility after the above noted amendment in the relevant rules which was later in time qua the appellants, therefore, they could neither be considered nor promoted in the year 2001. Learned counsel in this respect has placed reliance PLD 1990 SC 725. (iv) Learned counsel in order to elaborate his contentions submits that it is established principle of law that eligibility should exist on the date of vacancy and further for deciding the question of promotion the competition must be between the eligible and eligible and not between the eligible and in-eligible. In this respect learned Counsel has placed reliance on 1985 SCMR 699. Learned Counsel finally argued that long temporary service was to be considered as regular due to flux of time. According to learned Counsel after long service a civil servant is to be considered impliedly regularized and vested right of being regularized accrues as held by the apex court in 2004 SCMR 630, 2005 SCMR 716 and 2003 PLC (C.S.) 1357(SC). 12. Hafiz Tariq Nasim, Advocate, counsel for the appellants (In Service Appeals Nos.2933 to 2942 of 2005) besides adopting the above noted arguments of Mr. Masud Ahmad Riaz, Advocate, further added that as in the light of judgment of Hon'ble Lahore High Court, Lahore dated 24-1-2002 noted above, the matter stood re-opened, therefore, this Tribunal should decide the case through open mind keeping in view the law laid down by the superior courts in the above noted judgments and the appellants could not be non- suited on the ground of either limitation or latches etc. Further argument of learned Counsel is that the competent authority passed a detailed order on 18-12-2002 deleting condition of 'officiating basis' through a speaking order after due application of mind, therefore, the same provided valid and legal basis for declaring the promotion of appellants as on regular basis especially when the said order was passed in accordance with the judgment of Hon'ble Lahore High Court, Lahore dated 24-1-2002 as noted above. Learned Counsel also reiterated the above noted contention of Mr. Masud Ahmad Riaz, Advocate by laying specific stress on the point that insertion of word "officiating basis" in the order of promotion of the appellants dated 4-9-1995 was a superfluous and could not be considered as lawful condition in view of judgments especially of PLD 1970 Quetta 115 and other judgments noted above as relied upon by Mr. Masud Ahmad Riaz, Advocate, learned counsel for certain appellants. 13. On behalf of private respondents Mrs. Rizwana Anjum Mufti and Dr. A. Basit, Advocates argued the matter. Similarly Muhammad Farooq/private respondent No.23 also addressed the court to place his view point. According to Mrs. Rizwana Anjum Mufti, Advocate; (i) The appellants not only accepted their promotion order dated 4-9-1995 containing the condition of officiating basis but also never challenged the same before any forum for near about 6 years, meaning thereby that they accepted the said condition and thus they were precluded by their act and conduct from taking the plea that the said condition was either illegal or not justified. According to learned counsel it was for the first time in the year 2001 when the matter was agitated before the Hon'ble Lahore High Court through writ petition noted above and through judgments the Hon'ble High Court in clear terms rejected their plea holding "intervention by the High Court was declined". Learned Counsel contention is that through the said judgment though the Hon'ble High Court directed the competent authority to decide the matter in accordance with law after hearing both the affected parties and after investigation of necessary facts yet the High Court neither condoned the question of delay in agitating the matter nor over-ruled the provisions of section 21 of the Punjab Civil Servants Act, 1974 providing the period of limitation of 60 days for agitating the matter on the communication of order adversely passed against a civil servant. Learned Counsel in this respect submits that it is now established principle of law that if a departmental representation/ review/appeal…

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