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Petitioner: SHABBIR AHMAD CHUGTAI VS Respondent: SECRETARY TO GOVERNMENT OF THE PUNJAB, LG&RD DEPARTMENT, LAHORE,Malik Abdul Majeed & Ch. Ghulam Qadir and Qazi Umer Farooq
1998 P L C (C
1998 P L C (C. S.) 667
[Service Tribunal Punjab]
Before Muhammad Aslam, Member- II
SHABBIR AHMAD CHUGTAI
Versus
SECRETARY TO GOVERNMENT OF THE PUNJAB, LG&RD DEPARTMENT, LAHORE and 3 others
Appeal No. 484 of 1995, decided on 10th November, 1996
(a) Punjab Civil Servants Act (VIII of 1974)---
----S. 8---Punjab Service Tribunals Act (IX of 1974), S. 4---Promotidn-- Withdrawal of notification---Effect---Civil servant's competency for promotion---Civil servant being senior most "Executive Engineer" was eligible for promotion/selection---Selection Board being competent Selection Authority had recommended civil servant for promotion from specified date---Chief Minister being Competent Authority to make appointment to post of BS-19 approved recommendation of Selection Board and notification for giving effect to order of Competent Authority was issued---Before civil servant could join his assignment, another notification was issued withdrawing earlier notification---Directive of Chief Minister for withdrawing notification of promotion of civil servant could not be legally implemented for promotion had already been notified---Subsequent notification withdrawing promotion notification of civil servant was bad in law for it did not disclose any reasons and was passed without notice to him---Impugned notification was also of political nature for the same was obtained in disregard of channel of communication and through fabrication of record---Civil servant being eligible under relevant Rules was duly promoted on basis of recommendation of Provincial Selection Board and such recommendation having been approved by Competent Authority (Chief Minister) was duly notified and conveyed to civil servant---Such promotion was admitted by Departmental Authority to have been made in prescribed manner by Competent Authority---No case had been made out for infringement of any Rule or for any irregularity in promotion of civil servant---Such promotion was, thus, deemed to be regular and made in accordance with prescribed Rules and manner---Impugned notification purported to have been issued on specified date by which earlier notification of same date promoting civil servant was withdrawn, was declared to be illegal, mala fide, void ab initio and having no legal effect---Civil servant was declared entitled to all back benefits including pay and allowances attached with the post of BS-19 with effect from date from which he Was promoted as such.
PLD 1986 SC 349; Punjab ESTACODE, pp. 146-147; 1996 SCMR 1145; 1986 PLC (C.S.) 349; 1992 PLC (C.S.) 637; 1996 PLC (C.S.) 44 and 1995 SCMR 650 rel.
(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---
----R. 23---Promotion---Relaxtion of Rules by Chief Minister ---Essentials-- Power to relax Rules was although vesting in Chief Minister, yet such power was subject to condition that relaxation could be given only to remove hardship and only to the extent of removing such hardship and without taking away right of other civil servants guaranteed under the law and rules---Where record of rival civil servant was not examined from such angle nor any directive of Chief Minister was sought to remove any hardship, directive issued by Chief Minister in favour of rival civil servant was implemented in disregard of prescribed procedure and, rules, same was not warranted in the eye of law and would be invalid and inoperative.
1995 SCMR 650 ref.
(c) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---
----R. 9----Punjab Service Tribunals Act (IX of 1974), S. 4---Appointment by transfer---Essentials---Method of appointment by transfer was required to be resorted to only when person fulfilling requisite conditions of appointment was not available within functional unit---Where suitable person within functional unit was available, appointment by transfer could not be resorted to---Petitioner (civil servant) being competent and available to such post was entitled to hold charge of said post in circumstances.
1995 SCMR 1053 rel.
M.A. Riaz for Appellant.
Syed Abbas Raza, Deputy Attorney for Respondents Nos. 1 and 2.
Malik Abdul Majeed for Respondent No. 3.
Ch. Ghulam Qadir and Qazi Umer Farooq for Respondent No. 4.
Muhammad Yousaf, Assistant, SGA&I Department.
Date of hearing: 6th June, 1996.
JUDGMENT
The facts of the case are that the appellant joined service as Assistant Engineer, Rural Works Programme on 7-3-1969. In the seniority list of Executive Engineers issued on 10-7-1988, he is at Serial No. 1 while Raja Atta Ullah, (respondent No. 3) and Mian Muhammad Yousaf (respondent No. 4) are respectively at Serial Nos. 3 and 6. A post of S.E. was created in the office of Director-General. LG&RD Department in 1989. According to the Punjab Local Government and Rural Development Service Rules, 1981 notified on 5-12-1981 the post of Superintending Engineer (BS-19) is to be filled up as follows:--
"By promotion on the basis of selection on merit from among the Executive Engineers in functional unit having 12 years experience in the Department, if none is available by selection then by transfer. "
2. The case for filling up the post of S.E. was considered by Provincial Selection Board in its meeting held on 23-9-1989 and the appellant was recommended by the Board for promotion as S.E. The Chief Minister approved the recommendation of the Board on 21-1-1990. The approval of the promotion of the appellant was conveyed by SGA&I Department to Secretary, LG&RD Department (respondent No.1) on 23-1-1990. Consequently, the notification of promotion of the appellant as Superintending Engineer with effect from 23-9-1989 was issued by respondent No. 1 on 3-2-1990. The said notification was also notified in the Punjab Gazette dated 7-2-1990. The appellant was at that time working as Executive Engineer, LG&RD Department, Faisalabad. Before he could join the post on promotion, the following directive dated 3-2-1990 from the Chief Minister was received by respondent No. 1:--
"Minutes of the Provincial Selection Board regarding the promotion of Mr. Shabbir Ahmad Chugtai, XEN, Local Government alongwith others were approved by the Chief Minister and the same were returned to the Department. It has been brought to the notice of the Chief Minister that Mr. Shabbir Ahmad Chugtai has been wrongly promoted as S.E. and as such his case may be separately submitted for the information/orders of the Chief Minister within two days. Meanwhile his notification regarding promotion to the next grade may please be withheld."
3. Consequently, another Notification dated 3-2-1990 was issued by respondent No. 1 withdrawing the earlier notification bearing the same number and date. In pursuance of the abovementioned directive dated 3-2-1990, respondent No. l submitted a summary dated 7-2-1990 to the Chief Minister, through the Secretary, Services, SGA&I Department incorporating his views regarding the promotion of the appellant that the said promotion was based on the decision taken by the Provincial Selection Board. Secretary Services recorded his note dated 8-2-1990 on the summary and inter alia stated that the recommendations of the Board in favour of the appellant were based on merits of the case and in accordance with the criteria prescribed under the relevant rules. On this summary, the following orders of the Chief Minister were recorded on 19-2-1990:--
"Chief Minister has seen and observed that since the aggrieved party has filed a writ petition is the Lahore High Court, we may await the final verdict of the Court. "
4. The position about the writ petition filed in the Lahore, High Court by the parties is summed up as follows:--
(i) Writ Petition No.708 of 1990 was filed by respondent No.3 requesting for declaring the promotion of the appellant as unlawful. This petition was disposed of on 23-4-1994, as having become infructuous in view of the cancellation of the order of promotion of the appellant.
(ii) Writ Petition No.5367 of 1990 was filed by the appellant against the withdrawal of the notification of his promotion. This petition was disposed of on 26-4-1994 on the ground that it was hit by Article 212 of the Constitution.
(iii) Writ Petition No.7235 of 1990 for quo warranto was filed by one, Muhammad Akram against the appellant. This was dismissed in limine on 26-4-1994.
Meanwhile respondent No-3 was ordered to look after the work of the post of S.E. in addition to his own duties, under order dated 21-8-1993. After the disposal of petition a direction was issued by the Chief Secretary to respondent No.1 on 31-5-1994 that the appellant should be promoted as Superintending Engineer in pursuance of the approval of the recommendation of the Provincial Selection Board by the competent Authority conveyed on 23-1-1990. It was stated in this direction that the litigation against the appellant had come to an end and the said promotion was in order. A compliance report was also asked to be submitted to the Chief Secretary. These orders were not complied with. On the other hand, the following directives were issued by the Chief Minister on the dates shown against each: --
16-7-1993
"In supersession of previous orders, Chief Minister has been pleased to approve the promotion of Mian Muhammad Yousaf, Executive Engineer, LG&RD, Lahore Division as S.E. and his posting as S.E., at Lahore in relaxation of rules/procedure.
2. Further necessary action may kindly be taken accordingly."
18-5-1994
"Chief Minister has been pleased to approve the revalidation of directive bearing No. US (Dev) CMS-OT-176/93-123779, dated 16-7-1993 issued in favour of Mian Muhammad Yousaf, Executive Engineer, LG&RD Department on the subject (copy enclosed).
2. Further necessary action may kindly be taken accordingly."
28-7-1994
"Chief Minister has been pleased to approve the implementation of this Secretariat's order No. US(Dev)CMS-OT-176/93-123779, dated 16-7-1993 and the revalidation orders NO.SO-II-CMS-OT 176/94-6462-33207, dated 18-5-1994.
2. He has desired that Main Muhammad Yousaf, XEN. LG&RD, Rawalpindi be posted as S.E. LG&RD with immediate effect and a report may be sent to this office within seven days. Chief Minister has rejected the current charge for Raja Atta Ullah.
3. These orders are with reference to orders of the Lahore High Court, Lahore dated 26-4-1994.
4. Further necessary action may kindly be taken accordingly."
26-3-1995
"Chief Minister has seen and has desired that Chief Minister's earlier directive No. US (V)CMS-OT-281/94-3429-39972, dated 29 7-1994 regarding promotion/posting of Main Muhammad Yousaf as S. E. may be implemented." -
5. It would be seen that the directive referred to above are for posting/promoting of Mian Muhammad Yousaf (respondent Nb.4). It would be pertinent to point out that by the directive dated 28-7-1996, the Chief Minister had rejected the proposal for current charge appointment of Raja Atta Ullah (respondent No.3).
6. Subsequently, all the parties, the appellant, respondents Nos.3 and 4 filed writ petitions before the learned Lahore High Court. Finally, in Writ Petition No.14683/94, the learned Lahore High Court disposed of Writ Petitions Nos.9527 of 1994, 7517 of 1994 and 6865 of 1994 by a common order dated 9-3-1995, with the following order:-
"Accordingly, all these petitions are disposed of in the terms that the Secretary, LG&RD Department is directed to examine the matter so as to determine as to whether or not any person stands appointed against the post in question and if so, whether that appointment has been given effect to. If the Secretary comes to the conclusion that the post still remains vacant it shall be open to the competent Authority to make a fresh appointment. "
7.Consequently, a summary was submitted on 21-3-1995 by respondent No. l for information of the Chief Minister, on which the Chief Minister conveyed the directive dated 26-3-1995, to implement the earlier directive dated 28-7-1994 for the promotion/posting of respondent No.4 as S.E.
8. Meanwhile, another summary was submitted through the Chief Secretary on 15-4-1995 on which the following order was passed by the Chief Minister on 14-5-1995:-
"I have studied this matter in detail. Arguments can be advanced on either side as noticeable lacunae exist. However, I would be prone to reiterate my orders as at Annex. A."
9.The order dated 18-5-1995 was ultimately issued by respondent No.1 whereby respondent No.4 Executive Engineer PS-18 Rawalpindi Division was transferred and posted as S.E. LG&RD, Department in his own pay and scale/rank relieving respondent No.3 of the additional charge. The instant appeal has been filed against the abovementioned order of the Chief Minister dated 14-5-1995 and the order dated 18-5-1995 passed by LG&RD Department respondent No.1 with the prayer that the order of the Chief Minister dated 23-1-1990 approving the promotion of the appellant as Superintending Engineer and Notification dated 3-2-1992 issued by respondent No.1 promoting the appellant as S.E. (BS-19) in LG&RD Department with effect from 23-9-1989 may be restored.
10. It would be pertinent to state here that Mian Muhammad Yousaf respondent No. 4 also filed an Appeal No.247 of 1995 before this Tribunal in which he sought the implementation of the orders dated 16-7-1993, 18-5-1994, 28-7-1994 and 26-3-1995 (reproduced in para. 4) whereby the Chief Minister contentedly approved the promotion of Mian Muhammad Yousaf as S.E. by relaxing rules relating to appointment and conditions of service. It may be stated that Mian Muhammad Yousaf did not implead Mr.Shabbir Ahmad Chugtai or Raja Atta Ullah (the appellant and respondent No.3 respectively, in the instant appeal). Another Appeal No.486 of 1995 was filed before this Tribunal by Raja Atta Ullah on 18-6-1995, in which he impleaded Mian Muhammad Yousaf and Shabbir Ahmad Chugtai. Raja Atta Ullah in the said appeal prayed that he might be ordered to be posted as S.E. pending a decision by the Provincial Selection Board. The instant appeal was also filed on 18-6-1995. The learned Chairman decided appeal No.247 of 1995 of Mian Muhammad Yousaf on 28-6-1995, during the pendency of the two other aforementioned appeals filed by Shabbir Ahmad Chugtai and Raja Atta Ullah which were entrusted to me as a Bench by the learned Chairman on 22-6-1995. Raja Atta Ullah requested for withdrawal of his appeal No.486 of 1995; the same was, however, dismissed for non-prosecution on 21-3-1996. The instant appeal was still pending when the learned Chairman allowed the Appeal No.247 of 1995 filed by Mian Muhammad Yousaf with the observation that the appellant in the said appeal (Mian Muhammad Yousaf) was seeking only implementation of an order (directives of the Chief Minister) and the relief sought was of executory nature without much going into the substantial question of vires of those directives. The learned Chairman accordingly dismissed the application of Raja Atta Ullah in which he had asserted his seniority as Executive Engineer. The legal status of the directives was not determined and the question of seniority of the parties involved was also not considered. The appeal before this Tribunal filed by the appellant against Mian Muhammad Yousaf, on the other hand, were independently entertained and admitted for determining the important questions of the status and vires of the directives of the Chief Minister and seniority as well as promotion to the post of S.E. Dealing with the prayer of Mian Muhammad Yousaf for implementation of the directives of the Chief Minister, the learned Chairman concluded his order with the f6ltowing observations:
"Now coming to the main appeal, the respondent Secretary admitted that the appellant was promoted in his own pay and scale. It was held in PLD 1986 SC 349 that when promotion is made to a higher post, the incumbent has to be paid emoluments attaching to it for, it was thought to be unjust to get work of a higher post done without paying salary etc., fixed for it. That is why the expression "own pay and scale" was regarded at pages 146-147 Punjab ESTACODE as having no meaning or to be without any legal basis and indeed in consequential. The appellant shall, therefore, be paid the pay and scale of BS-19 with effect from 16-7-1993 when he was so promoted. A formal notification to that effect may be issued.
The appeal is allowed to the extent that the appellant after having been promoted to BS-19 is entitled to pay and scale prescribed for the post of S.E. A formal notification shall be issued by the respondent Secretary to that effect."
11. Feeling aggrieved by the said order dated 28-6-1995 Raja Atta Ullah and Shabbir Ahmad Chugtai both filed Civil Petitions Nos.828-L of 1995 and 865-L of 1995 before the learned Supreme Court and the leave to appeal has been granted. However, the learned Supreme Court by order dated 19-7-1995 suspended the operation of. the finding/observation made by the learned Chairman in his order dated 28-6-1995 to the effect "the appellant after having been promoted to BS-19". Mian Muhammad Yousaf was relieved of the charge of the post of Superintending Engineer on 12-10-1995 and Mr. Aslam Ali Sabzwari, XEN, Public Health Engineering Department from outside the department was posted as S.E.
12 That main contentions of the appellant are as follows
(i) The appellant was duly promoted as S.E., BS-19 with effect from 23-9-1989 by the competent Authority and in the, prescribed manner, the said order of promotion having been effectively made could not be reviewed or revised except on the ground of nullity, and since no such ground exists in the instant case, the order of promotion could not be withdrawn.
(ii) No notice was served on the appellant nor he was heard before the impugned orders were issued.
(iii) The order of promotion of the appellant was well-considered and made in accordance with the rules. As against this; the subsequent order dated 14-5-1995, passed in isolation, cannot override the original order dated 23-1-1990.
(iv) The appellant was promoted on the basis of recommendations of the Provincial Selection Board as per provisions of the rules whereas the case of respondent No. 4 was not considered by the Board.
(v) The Chief Minister is the appointing authority and can no doubt also relax the rules in accordance with the provisions of law, but in the instant case, the relaxation of rules, if any allowed in favour of respondent No. 4, cannot be legally sustained as the exercise of the power of relaxation is arbitrary and to the detriment of the appellant as neither any special reasons -had been recorded in favour of respondent No. 4 nor any hardship is stated to have been removed.
(vi) That respondent No. 4 cannot be treated to have been promoted on out-of-turn basis either, as the requirement of law and rules had not been fulfilled for the purpose.
(vii) That provisions of relevant law and rules have been disregarded only to promote the individual interests of respondent No. 4 as is indicated by the repeated issuance of directives in his favour, rather than in public interest. This is violative of the law laid down by the superior Courts.
13. Respondent No. 3 made the following main points: --
(i) The promotion of the appellant even as XEN in 1977 is illegal on the ground that he holds the qualifications of B.Sc. (Town Planning) which is not an engineering qualification and, therefore, he could not be registered with the Pakistan Engineering Council and as such he is ineligible to hold the post of an engineer and of XEN. In view of this, he is also not eligible to hold the post of S.E.
(ii) The post of S.E. is lying vacant since 1989 and only stop-gap arrangements were made till the department prepared a working paper recommending respondent No. 3 to be promoted as he was also the senior most eligible XEN and further-that no departmental inquiry was pending against him.
(iii) The appellant was proposed to be ignored for the reason of lack of qualifications as mentioned above as also because a departmental inquiry was pending against him.
(iv) That Writ Petition No. 5367 of 1990 filed by the appellant was dismissed as not maintainable, whereafter the appellant did not take any further measures to challenge the decision so that it attained finality. Writ Petition No. 7235 of 1990 filed against the appellant was disposed of on technical ground of laches whereas the question of non-registration of the appellant with the Pakistan Engineering Council had been raised in the said writ petition.
(v) Respondent No. 3 being the senior most eligible XEN and having been posted as S.E. to look after the work of the said post vide order dated 21-8-1993 deserves to be promoted as such.
14. Respondent No. 4 raised the following main objections:-
(i) That the order dated 14-5-1995 passed by the Chief Minister, being the final order was challenged on 18-6-1995 i.e. 3 days after the prescribed limit had expired. Further the order dated 18-5-1995 passed by respondent No. 1 should have been appealed against before the higher authority i.e. Chief Secretary or Governor and since no such appeal was made, the instant appeal is not competent.
(ii) The learned Lahore High Court vide judgment dated 9-3-1995 directed respondent No. 1 to examine the matter so as to determine as to whether or not any person stood appointed as S.E. This shows that the post was vacant and nobody including the appellant had been appointed thereto.
(iii) The appellant's promotion as XEN in 1977 was not in accordance with the law and he was not an Engineer registered with the Pakistan Engineering Council under the Pakistan Engineering Council Act, 1976 as he was B.Sc.(Town Planning) and, therefore, not eligible to hold any post of Engineer under the Government or local body. Since the first appointment was void ab initio further promotion as S.E. would also be void.
(iv) The post of S.E is to be filled by promotion on the basis of selection on merit, and the appellant, therefore, cannot claim it as a promotion post.
(v) Provincial Selection Board merely recommended the selection of the appellant and this fact alone does not confer any right of promotion.
(vi) The Notification dated 3-2-1990 promoting the appellant as S.E. did not attain finality for any purpose as the same had not been implemented as the appellant did not take the charge of the post nor he worked on the said post.
(vii) The Chief Minister being the executive head was competent to pass any order considered appropriate and the orders dated 14-5-1995 passed by him are quite clear, being order passed by the competent Authority.
(viii)The post of S.E. being a selection post, it was open to the Chief Minister as competent Authority to consider any XEN of the functional unit suitable for the post.
(ix) The orders dated 3-2-1990 whereby the appellant was promoted, were with drawn as the appellant did not possess the qualifications of an engineer and as such respondent No. l was competent to recall the decision. On the other hand, the orders dated 14-5-1995 passed by the Chief Minister in favour of respondent No.4 were competent orders which could only be enforced by respondent No. 1.
(x) The Chief Minister is the appointing Authority and is also competent to relax the rules, which he has done and the impugned order is legal for all purpose.
15. In the written objection filed by respondents Nos. and 2, it is stated that:--
(i) Respondent No.3 obtained orders dated 3-2-1990 from the Chief Minister, directing the withholding of the notification of promotion of the appellant which had been earlier approved by the Chief Minister: However, the copy of the said order of the Chief Minister for respondent No. l was received on 3-2-1990 and issued on the same date. The order of promotion and withdrawal of the same were both issued on 3-2-1990. Respondents Nos.l and 2 have obviously confused the two orders mentioned as Annexure ' C' instead of Annexure ' G' in paras. 6 and 8 of their written objections. It was clarified during the course of the arguments that the annexures mentioned in the said paragraphs are actually Annexure ' G' meaning thereby that respondents Nos. 1 and 2 contended that the order of withdrawal of the notification of appointment of the appellant was received on 3-2-1990 and issued the same day.
(iii) It is admitted that no personal hearing, was given to the appellant while withholding the order dated 23-1-1990 of the Chief Minister by which the appellant was approved for promotion as S.E.
(iv) It is admitted that the order dated 23-1-1990 conveying the promotion of the appellant was passed by the competent Authority in accordance with the rules.
16. The learned counsel for respondents Nos.3 and 4 raised the objections of maintainability of appeal on the grounds of res judicata and sub judice. The objection of res judicata is based…
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