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Petitioner: AHSANULLAH A. MEMON VS Respondent: GOVERNMENT OF SINDH through Chief Secretary JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title:AHSANULLAH A. MEMON vs GOVERNMENT OF SINDH through Chief Secretary
JUDGMENT
Reported As: 1993 SCMR 982 Result: Order accordingly Judgment JUDGMENT ' SAJJAD ALI SHAH, J.---This appeal with leave is directed against judgment dated 29th Jgly, 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 Exeecutive 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 University, 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
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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 filed 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 Act, 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, filed 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 8-4-1986 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 8-4-1986 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."
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7. We have heard at length Mr. Abdul Hafeez Memon, learned ASC for the appellant, Mr. Abdul Ghafoor Mangi, learned AA.-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 not accrue to the appellant and on that ground his appeal was premature. We have read carefully Notificatrion 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 that 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 mainainable 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 canot 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 Governnient 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
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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 on ad hoc basis shall be regularised retrospectively. Rule 12 provides that if an appointment is made by trannsfer, then person appointed otherwise than on his own request, shall for the purpose of determining the seniority be given benefit of his regular service or other post held by him before his transfer. 12. Now the case in hand of respondent No, 4 is to be examined in the light of legal provisions mentioned above. Strikingly prominent features of the case are that respondent No, 4 was already
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Executive Engineer (BS-18) in the University of Sindh and not at his request but on the initiative of Education Department his services were obtained on deputation for two years in the same grade in public interest (joint written statement of official respondents before Tribunal at page 64 of paper book). It is beyond dispute that this appointment by transfer was not ad hoc with regard to either the post or incumbent. This fact is so confirmed by relieving order of Registrar of University of Sindh (page 40 of paper book) and Notification of appointment dated 11th August, 1985 (page 41 of paper book). The period of probation of two years was not complete and within 8 months he was absorbed permanently with immediate effect vide Notification dated 8-4-1986. This was done on the basis of summary which was approved by Chief Minister on 2-4-1986. Subsequently, another summary was floated mentioning this fact that the intention of the department was to request for permanent absorption of respondent No, 4 from 31-7-1985, which is date of his entry in service of the department as requested by respondent No, 4 but inadvertently earlier Notification dated 8-4- 1986 mentioned absorption with immediate effect. Accordingly vide order dated 16-6-1989, the Chief Minister of Sindh was pleased to approve the summary granting permanent absorption with effect from 31-7-1985 and in consequence second Notification was issued on 22-6-1989 allowing retrospective absorption as stated above and in it this fact is mentioned that previous Notification dated 8-4-1986 is withdrawn and cancelled. Correct reflection of facts is contained in paragraphs 3 and 4 of summary which is approved by the Chief Minister on 16-6-1989 (page 11 of second paper book) which are reproduced as under:-- "Since in 1985, Education Department did not have enough qualified engineers of its own it was proposed to the then Chief Minister (Annexure-III) to absorb him permanently in the Department. While the Department was considering his permanent absorption, Mr. Rashdi also filed his request on 2nd December, 1985 (Annexure-IV) for absorption on the rolls of the Education Department. Chief Minister was pleased to approve Department's proposal (Annexure III) and Notification to that effect was issued and his absorption became effective w.e.f, 8th April, 1986 i.e, date of issue of Notification (Annexure V). ' The Administrative Department had intended and wished to have Mr. Akbar Rashdi absorbed from the date of his joining i.e, 31st July, 1985 because of his excellent performance, but inadvertently the specific date of his absorption could not be mentioned in the summary resulting in the absorption in the Education Department w.e.f, 8th April, 1986. This has definitely placed Mr. Akbar Hussain Rashdi in a disadvantageous position, because meanwhile some Junior Assistant Engineers of the Department who at the time of Mr. Rashid's induction in Education Department were not eligible for promotion on account of their not having rendered the prescribed length of servie i.e, 5 years whereas Mr. Rashdi was already in B-18 when he joined the Education Department. The people who got promoted in the meanwhile were M/s. Ahsanullah Memon and Mahmood Ali Lakho. They were promoted to B-18 on 11th December, 1985. Mr.Lakho even served under Mr. Rashdi as an Assistant Engineer. The comparative service particulars are detailed below:" 13. It is, therefore, crystal clear and beyond question that action of the Government impugned in this appeal has been competently taken with complete cover of rules. First of all the appointment was not ad hoc and could be regularised retrospectively from the date of entry in service and no rule has been pointed out disenabling the Government from doing so. Action of the Government can be considered in the light of discretion given to the Government to curtail or extend the period of probation. Valid reasons have been given as stated above for curtailment of period of probation and regularisation. Appellant has no vested right to claim seniority against respondent No, 4 and on that ground seek to stop regularisation of respondent No, 4 from the date of his entry in the service. Prohibition mentioned in Rule 10(2) of Sindh Civil Servants (Prohibition, Confirmation and Seniority) J Rules, 1975 is in respect of ad hoc appointment and nothing has been shown to us to support that appointment in dispute was or is ad hoc.
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14. One other noteworthy fact is that at the time when respondent No 4 was being considered for permanent absorption, recruitment rules for the posts of Executive Engineers in the Directorate of Engineering and Works of that department were non-existent. Draft was prepared and sent to Recruitment Rules Committee of Sindh Public Service Commission. It was proposed by the Committee that post may be filled in by promotion from amongst Assistant Engineers working in the Department as was being done in the C&W department. As mentioned in the summary for Chief Minister dated 18th January, 1986 (page 7 of second paper book) Education Secretary did not endorse that suggestion for the reason that promotee engineers were not available as all of them had been promoted and newly-recruited Assistant Engineers of the Department were far too junior for promotion. In such circumstances, proposal was made that respondent No, 4, who had served in various capacities for more than 8 years in Grade-18 as against required length of service of 5 years, may be absorbed as Executive Engineer in relaxation of the rules. 15. As claimed by respondents, impugned action is taken by the Government under section 24 of Sindh Civil Servants Act, 1973, which reads as under:-- "Nothing in this Act or in any rule shall be considered to limit or abridge power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: ' Provided that where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rules." 16. Bare reading Of section 24 of the Sindh Civil Servants Act, 1973, makes the intention of Legislature very clear that the Government is empowered to make deviation from rules or grant exemption from application thereof in a fit case which may appear to the Government to be just and equitable. Vastness or enormity of this power of the Government can be visualised in the light of section 26 of this Act under which the Government has been given power to frame, amend or .Repeal the rules. What case is just and equitable is for the Government to decide but it can be said that in the normal course provisions of this Act and rules framed thereunder are to be acted upon but in an extraordinary case which is considered to be just and equitable application of rules can be exempted if causing difficulty converting the case into a hardship case. We are of the view that the Government should not and cannot exercise these powers in a case where vested rights of other civil servants are violated and impugned upon. 17. Having given due anxious consideration to the fact as observed by the Service Tribunal in the impugned judgment that during the subsistence of probation when case of respondent No, 4 was recommended for regularisation, ii was not put up before Departmental Promotion Committee as is required under Rule 7 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. It is therefore, clear that as it appears from the record and persual of two summaries submitted to the Chief Minister in this connection, views of Secretary, Chief Secretary and Minister were consistent and heavily in favour of respondent No, 4 showing complete satisfaction with his work and performance and the Chief Minister, who is appointing authority also shared the same views, hence in such circumstances reference of the case to the Departmental Promotion Committee for obtaining its recommendations would be just a formality rendering itself as unnecessary. 18. From the rulings cited by Mr. Memon, learned counsel for the appellant in support of his contentions, case of Mukhtar Ahmad and others v. Government of West Pakistan (PLD 1971 SC 846) is not attracted to the facts of this case for the reason that order impugned therein was passed before promulgation of Civil Servants Act, 1973 and other co-related Provincial Laws and at that time Constitution of 1%2 was in force. Second case cited by him is of Iqbal Ahmed Khurram v. Government of Pakistan PLD 1980 SC 153 which also does not advance the case of appellant for the reason that points decided in the reported case and the facts are different. The nearest point comparable is the interpretation of sections 23 and 25 of the Civil Servants Act, 1973. In that case Federal Government under rules had altered the method of recruitment and promotion and it was
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claimed that the new rules would supersede the existing rules on the subject and would govern the eligibility for promotion and recruitment. Objection was raised by the counsel for petitioners appearing in that case that proviso to section 23 would come in the way to frame such rules. It was held that the President or any person authorised by him has unrestricted power under section 25 to make such rules as appear to him to be necessary or…
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