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Petitioner: MUHAMMAD RAFIQ, SUBENGINEER VS Respondent: DIRECTORGENERAL and another
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Arif, Ajmal Mian, Sh. Riaz Ahmad Title: MUHAMMAD RAFIQ, SUBENGINEER vs DIRECTORGENERAL and another Case No.:civil Appeal No, 37 of 1997Civil Appeal No, 38 of 1997Civil Appeals Nos. 1178
JUDGMENT
Reported As: 1999 SCMR 2122 Result: Order accordingly Judgment JUDGMENT CH. MUHAMMAD ARIF, J.---By this common judgment we intend to dispose of (1) C.A's. Nos. 37 and 38 of 1997 (2-appeals,), (2) C.A's. Nos.1178 to 1184 of 1997 (7-appeals,) (3) C.A's. Nos.1823 and 1824 of 1997 (2-appeals,) (4) C.A. No, 218 of 1998 (1-Appeal), (5) C.P. No,847 of 1997 (1-petition) and (6) C.P's. 1182 and 1183 of 1997 (2-petitions), in all 15-cases, as common questions of law and facts arise therein. It may be stated at the very outset that in all the above appeals 4-leave granting orders were made respectively on 13-1-1997, 14-10-1997, 5-3-1997 and 24-2-1998. The impugned judgment of the Federal Service Tribunal, hereinafter referred to as the Tribunal, in the above 12-Civil Appeals is dated 11-6-1996 but in 3-Civil Petitions Nos.847, 1182 and 1183 of 1997, the judgment is dated 11-4- 1997. The question before the Tribunal in all these cases revolved around the interpretation of section 8 of the Civil Servants Act (No, LXXI of 1973), hereinafter referred to as the Act, in relation to counting or otherwise of the seniority of the private parties herein in different grades of Sub- Engineers in B-11 and B-16 from the date of their affiliation with and regularization in posts in B-11 while serving in Pak P.W.D. As Sub-Engineers (B-11,), on different dates and at different times. Ministry of Housing and Works Rules for Recruitment/Appointment to the posts of Sub-Engineer B-11 and B-16:
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2. The Pak P.W.D., vide Notification dated 28-8-1984, prescribed that vide rule 2 of the Notification aforereferred, the posts of Sub-Engineers (B-11) were to be filled in by initial appointment whereas the other posts of Sub-Engineers (B-16) were to be filled in by promotion of Engineers (B-11) having 10 yearsservice and also having passed the prescribed departmental examination. As it was the case of all concerned that the private parties had passed the prescribed departmental examination and since they also had 10 yearsservice to their credit, they were recommended for promotion to the posts of Sub-Engineer (B-16) vide office orders dated 23-12-1985, 29-6-1987, 4-10- 1987, 5-9-1989, 26-10-1989, 1-2-1990, 30-6-1990, 17-11-1990, 13-5-1991 and 27-6-1992. Supersession of Recruitment Rules notified vide Notification, dated 28-8-1984 and issuance of new Recruitment Rules for appointment to the post of Sub-Engineer (B-11) in the year-1992. 3. It was on 11-2-1992 that the Ministry of Housing and Works superseded the rules notified vide Notification dated 28-8-1984 and issued new recruitment rules for the appointment of Sub- Engineer (B-11) vide SRO.98 (1)-92. This S.R.O. Provided for filling the posts of Sub-Engineer (B-11) by initial appointment and that 33% of the total posts of Sub-Engineers shall be placed in Selection Grade B-16. The selection grade posts were to be filled on the basis of, seniority-cum-fitness from amongst the Sub-Engineers who had completed 10 yearsservice and had also passed the prescribed departmental examination. The change brought about in 1992, by doing away with the concept of promotion under 1992-rules which also provided for placing 33% posts of diploma holders in B-11 in Selection Grade B-16. Those Sub-Engineers who had already been promoted to B- 16 pursuance to the rules of 1984, made representations through their Association to the effect that their placement in B-16 under Recruitment Rules of 1984 meant promotion to B-16 and, therefore, they be placed in separate seniority list of Sub-Engineers (B-16 Gazetted) and also allowed to count their seniority in B-16 from the date/s of the promotion as such. Works Division reference to Establishment Division and issuance of O.M. Dated 28-6-1995. 4. The Pak Public Works Division made a reference to the Establishment Division for advice on the representations of the Sub-Engineers and the Establishment Division, vide O.M. Dated 28-6-1995, ruled that the right which had already accrued to the Sub-Engineers promoted to B-16 under the Recruitment Rules of 1984 could not be withdrawn or changed to their disadvantage and that such Sub-Engineers be either placed on a separate seniority list or at the top of combined seniority list of Sub-Engineers. It was added that Sub-Engineers promoted to B-16 would have precedence over the rest of the category, including the selection grade Sub-Engineers, for the purposes of promotion to the posts of Assistant Executive Engineers B-16. While acting upon this advice of the Establishment Division, the Works Division issued a notification on 12-7-1995 declaring the Sub- Engineers who had been placed in B-16 between, the years-1981 and 1985 in terms of Recruitment Rules of 1984, as having been promoted to B-16 Gazetted w.e.f, the date of their placement in B-16. Further, a seniority list of Sub-Engineers B-16 Gazetted was also published by the Ministry of Works and circulated in July-1995. Representation/s before competent Authority pleadings that the Rules of 1984 did not confer any right of seniority on Sub-Engineers (B-16): 5. The appellants made representations to the competent Authority claiming that the cadre of Sub-Engineers being one and the inter se seniority of Sub-Engineers, both of B-11 and B-16, fell for fixation from the date of their initial appointment as Sub-Engineers in accordance with the then seniority rules and, therefore, the Rules of 1984 could not be equated with conferring any right of senority on Sub-Engineers B-16. Appeals before the Tribunal:- 6. Since the matter could not be decided within, the stipulated time at the revel of the, department Appeals Nos. 397-R151.5, 412-R/95, 413-R/95; 430-R/9., 179-L/95, 145,K/95, 153-K/95, 157-K/94, 1-K/96, 380-L/95, 448-R/5 to 451-R/95 and 466-R/95 were resorted to before the Tribunal after the expiry
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of statutory waiting. Period, requesting for the determination of inter se seniority of Sub-Engineers on the basis of continuous length of service in the cadre of sub-Engineers, irrespective of the fact whether they are in B-11 or B-16. Case of the appellants before the Tribunal.:. 7. The case of the appellants was that the cadre of Sub-Engineers is one and the same, with the result that the placement of Sub-Engineers in B-16 or in Selection Grade would not entitle them to any precedence over Sub-Engineers in B-11 and that the inter se seniority of all the Sub-Engineers is to be counted from the date of entry into service in accordance with section 8(4) of the Civil, Servants Act, 1974. Further, separate seniority lists of Sub-Engineers B-11 and Sub-Engineers B-16 Gazette were against the Rules, and therefore, liable to be struck down. Case of the private-respondents before the Tribunal: 8. The case of all the private-respondents was that the Recruitment Rules of 1984 did envisage independent posts of Sub-Engineers B-11 and B-16. The former were to be filled in by initial recruitment whereas the latter by promotion from amongst Sub-Engineers B-11, having 10 yearsservice as also having qualified the departmental examination. In other words the plea was that the post of B-11 was feeding post for promotion to B-16.-It was pleaded on their behalf that the word 'cadremeans the strength of a service or a part of service, sanctioned as a separate unit. As the Recruitment Rules of 1984 had, within their contemplation, separate unit in B-16, therefore. The promotion of private respondents to B-16, after passing the departmental examination under the rules, earlier to the appellants, had an edge over the incumbents of the posts of Sub-Engineers in B-11, with the consequential right to count their seniority from the date of regular promotion to B-16. Judgment of the Tribunal dated 11-6-1996 (in C.As. Nos. 37, 38, 1178 to 1184, 1823 and 1824 of 1997:. 9. The Tribunal considered the respective cases of the parties before it and, after making a detailed reference to the Recruitment Rules of 1984, it came to the following conclusion: "5. We have carefully examined the arguments advanced by the learned counsels for the parties and have gone through the relevant record and rules. Before entering into one (sic) discussion, extract of Recruitment Rules of 1984 is reproduced hereunder for convenience of reference: SRO 751 (1)/84-In pursuance of sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the following methods, qualifications and other conditions are laid down for appointment to the posts of Sub-Engineers (BPS-11) and (BPS-16) in the Pakistan Public Works Department,. Under the Ministry of Housing and Works (Works Division). "METHOD OF APPOINTMENT "2. The method of appointment to the post shall be as under:-- (i) Sub-Engineer (Civil) (B-16)By promotion of Sub-Engineers (Civil) BPS-11) (ii)Sub-Engineer (E/M) (B- 16)By promotion of Sub-Engineers (E/M BPS-11) (iii)Sub-Engineer (Civil) (B-11)By initial appointment (iv)Sub-Engineer (E/M) (B- 11)By initial appointment CONDITION FOR PROMOTION 3.25% of the total posts of Sub-Engineer separately of Civil and Electrical/Mechanical cadres shall be placed in BPS-16 and shall be filled on the basis of seniority-cum-fitness from amongst the Sub- Engineer diploma holders having completed 10 years service in the department provided that they have passed the prescribed Departmental Examination. A plain reading of the above quoted rule would show that the rule makers desired two different posts of Sub-Engineer-one of B-11 and the other in B-16. It is true that number of posts in B-16 was
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limited initially to 25% and later to 33% of the total posts of Sub-Engineers but the rules definitely contemplate a separate 'unitof Sub-Engineers in B-16. If this had not been the import of Rules, 1984, then there was no occasion of issuing SRO 98(1)/92, dated 11-2-1992 whereby the concept of promotion to B-16 was done away (with) and instead the schemes of Selection Grade (B-16) was introduced. As per new rule of 1992, the Selection Grade posts were to be filled in on the basis of seniority-cum-fitness from amongst the Sub-Engineers (B-11). We, therefore, feel inclined agree with Mr. F.E. Siddiqi counsel for the private respondents that having been promoted to B-16 an independent unit in the cadre of Sub-Engineer in accordance with the Recruitment Rules of 1984, the respondents got a right to count their seniority from the date of their regular promotion to B-16. 6. For the reasons discussed, we uphold the decision of the department to give the private respondents precedence over the B-11 Sub-Engineers and also approve the action of the department in maintaining a separate seniority list of B-16 Sub-Engineers circulated on 12-7-1995. As a consequence, all the appeals are dismissed with no orders as to costs. Parties be informed." 10. Operative part of the judgment dated 12-11-1996, which is the subject-matter of C.A. No, 218 of 1998 reads thus: "5. We have heard both the parties and perused the relevant record. As already pointed out before, the seniority position is not in dispute. It has also been conceded by the respondent-department that the appellant, too, had completed 10 yearsservice and had passed the prescribed departmental examination, 1987 and was, thus, eligible for promotion alongwith the contesting respondents. The defence in the department's own words is that since the appellant passed the departmental examination in the year 1987 and respondents 4 to 8 had passed this examination either in 1985, they became eligible first and were, therefore, placed in the selection grade by the department, is, in our opinion, not correct. Section 8 of Civil Servants Act, 1973, provides that promotion can only be made to a higher post and seniority is to be recorded with reference to date of continuous appointment to a particular post. The pay revision rules do not determine these matters. Placement of the Sub-Engineers in B-16 against the 25% or 33% quota does not, therefore, mean that they have been promoted on regular basis. It does not take away the right of seniority from the date of continuous appointment in a cadre/post of their seniors who passed/cleared the departmental examination later than their juniors respondents 4 to 8 for various reasons particularly when the requisite rules for the relevant examination have not been framed. We have also perused the case of Prof. Dr. Badshah Gul and others v Prof. Dr. Shafiq Ahmed and others reported as 1995 SCMR 185, wherein the Hon'ble Supreme Court held in the relevant portion as under:-- Post would; therefore, be the determining factor for deciding inter se seniority between civil servants holding the same post--Although rule provide that seniority list amongst officers of a particular grade or post to be prepared, yet where inter se seniority was to be taken on the basis of post, higher grade for financial purposes would not affect the person holding seniority in post. 6. In the circumstances stated in the preceding paragraphs, the appeal is accepted and the respondent department is directed to issue a revised seniority list of Sub-Engineers, according to their initial appointment and presumptive seniority and place the appellant over and above respondents Nos.4 to 8 in a cadre of Sub-Engineers. The appeal is, therefore, disposed of accordingly." 11. Operative part of the judgment of the Tribunal dated 11-4-1997, which is the subject-matter of C.P. 847 of 1997, reads thus: "5. Before touching the merits of the case, once again we wish to have a recapitulation regarding the history of the Rules governing the contesting parties. In 1974, the Prime. Minister took a decision that 25% of total posts of the Diploma Engineers shall be placed in Grade-16. These posts should be filled on the basis of seniority-cumfitness and subject to ten years service and passing the
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prescribed departmental examination. This office memorandum in the shape of executive instructions was later on incorporated in the Rules of 1984 wherein it was provided that the qualifications and other conditions are laid down for appointment to the posts of Sub-Engineers (B-11) and (B-16) in the Pak P.W.D.and it was further provided that the method of appointment to the post of Sub-Engineers (B-16) shall be by promotion of Sub-Engineers (B-11). However, in the conditions for promotion, it was provided, in accordance with the said directive of 1974, that '25% of the, total posts of the Sub-Engineers shall be placed in B-16 and shall be filled on the basis of seniority-cum-fitness from amongst the Sub-Engineers Diploma Holders having completed ten yearsservice in the department provided that they have passed the prescribed departmental examination'. These Rules were later on amended in 1992 and it was provided that '33% of the total posts of Sub-Engineers (B-11) shall be placed in Selection Grade B-16. The selection grade posts shall be filled on the basis of seniority-cum-fitness from amongst the Sub-Engineers who have completed ten yearsservice in the department and have passed the prescribed departmental examination'. Thus, keeping in view both the Rules, the judgments given by this Tribunal earlier, apparently conflicting nature, can be reconciled in a manner that prior to 1992 the placement of Sub-Engineers from B-11 to B-16 was a promotion and not a selection grade, whereas after 13-2- 1992 not only the quota of placement in B-16 was increased but the placement was changed from promotion to the selection grade. 6. However, the situation with which we are faced today is entirely different. In 1994 the earlier Rules for promotion to the post of Assistant Executive Engineer were changed and it was provided therein that 25% of the posts of Assistant Executive Engineers (Civil) in BPS-17 shall be filled by promotion and that the persons eligible for such promotion to such posts shall be the Sub- Engineers/Assistant Engineers having '13 years service in B-11 and above and having passed the departmental examination'. Thus, with effect from 23-1-1994, all those employees working as Sub- Engineers/Assistant Engineers having 13 yearsservice in B-11 and above and having qualified the departmental examination shall be eligible to be considered for promotion to the post of Assistant Executive Engineer irrespective of any other consideration whether any one of such eligible persons was promoted to B-16 or was allowed selection grade in B-16 under the rules of 1984 or 1992. It is a general_ principle of interpretation of the statutes that the plain reading of the provisions, if unambiguous, is adopted in its true sense without importing any extraneous provisions or considerations. If the Rules require that the condition of eligibility for promotion shall be based on the entire service rendered by a Sub-Engineer in B-11 and above, we are at a failure to appreciate why any preference could be given to the Sub-Engineers placed in B-16 on the basis of their dates of promotion in B-16. Nobody should claim to be wiser than the law or the rules. If the competent Authority had considered to allow any priority to those promoted earlier over those promoted later, or even if they were not so promoted, a clear provision could have been introduced. The intentional omission in the Rules to give any credit to the promotees in further promotion means that the authority did not intend to differentiate between both the two categories of Sub-Engineers in B-11 and B-16 for the purpose of promotion as Assistant Executive Engineers (B-17). Although both the parties, i.e, the appellants and the private respondents are presently working in B-16 and admittedly the appellants joined the service in B-11 earlier than the private respondents but for the sake of arguments, we may take that even if any of the appellants was in such a position that he was still working in B-11, he should have been considered for promotion to B-17 in preference to all the others subject to the only condition that he was senior to all of them and had passed the departmental examination, though recently. The private respondents might constitute an entire different cadre of promotees Sub-Engineers and the appellants might constitute a different cadre of selection grade Sub-Engineers and they may have their separate seniority lists for any other purpose for which the same may be relevant or which might be of any use prior to the
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enforcement of Rules of 1994, i.e, 23-1-1994, but there is no ambiguity in the Rules of 1994 and the promotion is to be based on the total length of service rendered by a Sub-Engineer in B-11 and above. No Preference or priority whatsoever can be given on the basis of the placement as civil servant in B.-16 or the date thereof. 7. The learned counsel for the private respondents had argued that the appeal was not maintainble as the appellants have not challenged the basic order dated 7-2-1996 and had only challenged the notification dated 11-2-1996 which was merely a posting and transfer order and not an order of promotion. He, therefore, urged that with the setting aside of the order dated 11-2-1996 the original order dated 7-2-1996 will still hold the field. We have perused the record and we do not agree with the argument for the reasons that the departmental appeal as well as in the memorandum of appeal, the order dated 7-2-1996 read with order dated 11-2-1996 has been challenged. The omission in the prayer is a typographical mistake only and cannot negate the entire contents of the memorandum of appeal. Similarly, the argument that the appellants have not challenged the grant of selection grade of the private respondents neither challenged the seniority list and, therefore, the position of the private respondents being senior to the appellants has attained finality which cannot be reopened at this stage, is also repelled by the fact that the seniority list of 1994 is already sub judice before the Hon'ble Supreme Court and the grant of selection grade or promotion to B-16 in the same cadre. Was merely an incentive and financial benefits on qualifying the departmental examination and, therefore, the appellants had no cause to challenge the grant of selection grade or promotion prior to their becoming eligible for the said benefit, by passing the departmental examination. As stated earlier, the private respondents were senior in B-16 and they could have been promoted to B-17 prior to 1994 but with the amendment in the Rules effective from 23-1-1994, the basic condition of eligibility for promotion to B-17 has been modified and based on the total length of service in B-11 and above. Similarly, the argument of giving preference to the Gazetted Sub-Engineers (B-16) over non-Gazetted Sub-Engineers (B-16) is also devoid of force because the provisions contained in the Rules of 1994 are quite clear and unambiguous. 8. Consequently, we accept both these appeals and direct that the appellants deserve to be considered for promotion as Assistant Executive Engineers (B-17) on the basis of their entire length of service in B-11 and above, in accordance with the Rules of 1994 and, therefore; we direct that their cases may be placed before the appropriate D.P.C. For consideration. On their promotion, they will be deemed to have been promoted with effect from 7-2-1996, the date when the private respondents were so promoted. No order is made for costs." 12. Operative part of the majority judgment dated 26-8-1997 passed by the Tribunal in Appeals Nos.285 and 186 (R) of 1997 reads thus: "By virtue of proviso (a) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal is that this appeal is accepted in terms of paragraph-6 of the judgment, as per majority view." 13. Operative part of judgment dated 4-9-1997 passed by the Tribunal in Appeal No,231-L of 1997 reads thus: This matter had already come before this Tribunal and in a very detailed order in Appeal No,61 (K) of 1996, decided, on 11-4-1997, all these issues had been discussed in detail alongwith their implications. The final conclusion arrived at was that the appellant deserves to be considered for promotion as Assistant Executive Engineer (B-17) on the basis of his entire length of service in B-16 and above, in accordance with the rules of 1994. Another appeal was decided by this Tribunal with No,288(R) of 1996 decided on 12-11-1996, wherein the department had been directed to issue a revised seniority list of Sub-Engineers according to initial appointment and presumptive seniority. The Supreme Court of Pakistan in Civil Petitions Nos.1712-L and 1715/L of 1996, held that section 8 of
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Civil Servants Act, 1973 provides that promotion can only be made to a higher post and seniority is to be recorded with reference to date of continuous appointment to a particular post. The pay revision rules do not determine these matters. Placement of the Sub-Engineers in B-16 against the 25% or 33% quota does not, therefore, mean that they have been promoted on regular basis. It does not take away the right of seniority from the date of continuous appointment in a cadre/post of their seniors who passed/cleared the departmental examination later on than their juniors. 6. In the light of these judgments the prayer of the appellant is that a direction be given to the departmental authority to consider the appellant for promotion to B-17 with effect from the date when the appellant's juniors were wrongly promoted, is held to be supported by law and facts of the case. 7 As a result, the appeal succeeds to the extent that the departmental authority should consider the appellant for promotion to B-17 with effect from the date when the appellant's juniors were promoted. 14. Leave Grant Order (in C. P) Nos.1713-L of 1996 and 1715-L of 1996 which gave rise to Civil Appeals Nos.37 and 38 of 1997) reads thus:-- "Leave to appeal is sought against judgment dated 11-6-1996 by the Federal Service Tribunal disposing of 16 Appeals including Appeal No,380 (L) of 1995 filed by petitioner Muhammad Rafiq and Appeal No,379 (L) of 1995 filed by petitioner Muhammad Azam. Admittedly petitioner Muhammad Rafiq was appointed on 2-5-1974 as Sub-Engineer in BS-11, while Muhammad Azam was appointed in the same post on 29-4-1975. In 1974 Federal Government issued office memorandum dated 16-11-1974 by which 25% of the total cadre strength of Diploma Engineers were to be placed in BS-16 on the basis of seniority-cum-fitness and subject to passing of the prescribed departmental examination as well as past service of ten years. In pursuance of such memorandum the petitioners were placed in BS-16 on…
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