2012 PLC(CS) 1477

Ch. LIAQUAT ALI VS PROVINCE OF PUNJAB

Petitioner: Ch. LIAQUAT ALI VS Respondent: PROVINCE OF PUNJABHonorable Justice Tassaduq Hussain JillaniHafiz S.A. Rehman,Jawad Hassan, Shoaib Shaheen

Court: Supreme Court of Pakistan

Full Judgment Text & Judicial Ruling

2012 P L C (C.S.) 1477

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Tariq Parvez and Mian Saqib Nisar, JJ

Ch. LIAQUAT ALI and another

versus

PROVINCE OF PUNJAB and others

Civil Appeals Nos. 1288 and 1289 of 2008, decided on 10th July, 2012.

(On appeal from the judgment dated 7-4-2008 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 2931, 2932 and 2933 of 2006).

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

----Ss. 7(1) & 2(i)(b)--- Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8---Inter se seniority---Appellants (civil servants) and respondents (civil servants) were appointed in BS-17 on temporary posts---Respondents were appointed on 'development' projects which were foreign funded and on closure of said project, they were adjusted against permanent posts on the basis of their length of service under the temporary projects, whereafter the respondents were placed senior to the appellants in the seniority list---Contentions of appellants were that respondents were working on 'development' projects of temporary nature and their salaries were paid from foreign monitory assistance, therefore, they were not civil servants in view of S.2(i)(b) of Punjab Civil Servants Act, 1974; that person appointed on a project post on year to year basis could not be assigned seniority vis-a-vis appointees on regular basis against permanent posts or against 'non-development' posts; that Service Tribunal was incorrect in finding that mere switching over of posts from 'development' to 'non-development' side did not alter the regular nature of appointments, terms and conditions of service or nature of functional unit/cadre and seniority of parties, and that delay in challenging seniority list could not be a basis for non-suiting the appellants as relegation of seniority was violative of law and was a recurring cause of action and could be challenged at any time---Validity---Relevant recruitment rules for the project created no distinction between 'development' and 'non-development' side---Contention of appellants that since the respondents were appointed against certain projects, which were abolished and were adjusted against certain posts after abolition of the earlier posts which they held and therefore, their seniority should be reckoned from the date of adjustment was neither borne out from the nature of the posts on which respondents were initially appointed nor it was so provided in the criterion of adjustment issued by the competent authority in the Provincial Government after abolition of said posts---Contention of appellants that since the respondents were initially appointed on a project, which was funded by a foreign donor, therefore, they could not be classified as appellants had no substance---Appellants had not referred to any order of the competent authority in the Provincial Government, which could warrant an interference that the appointment of respondents were against specific posts and on the completion of projects, their services could not be continued or which provided that the seniority of such officers would reckon from their adjustment---Initial appointments of respondents in BS-17 and their subsequent promotions in BS-18, were of earlier dates as against the appellants and both the parties were in the same functional unit---Departmental Promotion Committee or Provincial Selection Board had not varied the seniority of the appellants at any stage nor were they superseded---Seniority list published from time to time remained unchallenged by the appellants and in all such lists they were placed junior to the respondents and in such circumstances it was late in the day for appellants to challenge the seniority list after almost 15 years---No reference had been made by appellants to any rule or statutory provision which had been violated or contravened in upholding the impugned seniority list, wherein appellants had been placed junior to the respondents---Judgment of Service Tribunal was unexceptionable---Appeals were dismissed.

Sabir Zamir Siddiqui v. Abdul Malik PLD 1991 SC 226; Ahsanullah A. Memon v. Government of Sindh 1993 SCMR 982; Abdul Rashid Khan v. Muhammad Saleem Akhtar 1996 SCMR 1163; Muhammad Younas Jaffar v. Government of Pakistan PLD 1996 SC 86 and Din Muhammad v. Director-General Pakistan Post Office 2003 SCMR 333 ref.

Wazir Khan v. Government of N.-W.F.P. 2002 SCMR 889; Rashida Asif v. Aasia Gondal 2010 SCMR 450 and Ahmed Khan v. Secretary to Government 1997 SCMR 1477 rel.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants.

Jawad Hassan, Additional A.-G. for Respondents Nos.1 to 3.

Shoaib Shaheen, Advocate Supreme Court for Respondents Nos.4 to 7.

Date of hearing: 10th July, 2012.

JUDGMENT

TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeal No.1288 of 2008 filed by Ch. Liaquat Ali and Civil Appeal No.1289 of 2008 filed by Amjad Saleem as they are directed against the same judgment dated 7-4-2008 vide which the learned Tribunal dismissed three appeals including those of the appellants. The appellants in those appeals had assailed the order of the Appellate Authority/Chief Secretary, Punjab dated 24-10-2006 vide which their service appeals against the final seniority list of BS-18 officers of Water Management Wing of Agriculture Department (dated 30-9-2003), were dismissed.

2. Facts giving rise to these appeals briefly stated are that in Civil Appeal No.1288 of 2008, appellant Chaudhry Liaquat Ali was recruited as Agricultural Economist on temporary basis and he joined service on 19-8-1987 on the recommendation of the Punjab Public Service Commission. The Department issued and circulated a provisional seniority list dated 30-9-2003 where he was placed at serial No.22 (circulated on 12-1-2004). Appellant filed objections which were turned down on 1-10-2004; his representation dated 27-10-2004 remained un-responded; he filed appeal before the Service Tribunal (Appeal No.429 of 2005) which was disposed of on 24-5-2005 and the case was remanded to the Chief Secretary to decide the matter in his capacity as Appellate Authority. The Chief Secretary dismissed the appeal on 24-10-2006 vide a consolidated order wherein he also dismissed similar appeal against the same seniority list filed by appellant in the connected Civil Appeal No.1289 of 2008. This order was challenged by both the appellants before the learned Punjab Service Tribunal, which stands dismissed vide the impugned judgment.

3. In Civil Appeal No.1289 of 2008 appellant Amjad Saleem was appointed as Assistant Agriculture Engineer (BS-17) vide the order dated 23-7-1981; he was promoted in BS-18 on 5-10-1992 as Project Director (Engineering) under Second Barani Area Development Project and was placed at Sr. No.40 of the seniority list of respective cadre. After closure of this Project on 30-6-1997, the post he was holding was abolished and he was adjusted against an equivalent cadre post. On the issuance of final seniority list of Grade-18 officers of Water Management Wing of Agriculture Department as corrected up to 30-9-2004, appellant raised certain objections and his representation having remained abortive, he also, like appellant in Civil Appeal No.1288 of 2008, filed appeal before the Service Tribunal, which was disposed of in terms of the afore-mentioned remand order and the Chief Secretary was directed to decide the issue and the Chief Secretary dismissed his appeal along with the appeal of the appellant in the connected appeal, which order was assailed before the Tribunal and his appeal was also dismissed vide the judgment dated 7-4-2008.

4. Learned counsel for the appellants Hafiz S. A. Rehman made following submissions as the issues raised in both these appeals are similar:--

(i) that neither the Departmental Appellate Authority nor the Service Tribunal has adverted to the substantive issues raised in the appeals and therefore, the orders passed are not sustainable in law;

(ii) that the Departmental Appellate Authority as also the learned Service Tribunal have not appreciated that in the Water Management Wing of the Agriculture Department, Government of Punjab, 'development side' meant that there were certain Water Management Projects of temporary nature which were launched on 1-7-1981 and those were named as On-Farm Water Management Projects, which were of temporary nature and were for a fixed period. The employees appointed on those temporary projects including the private respondents were recruited against temporary posts and their salaries/emoluments were paid from contingency/foreign monetory assistance and not from the Government of Punjab as such all those employees were neither civil servants in view of section 2(i)(b) of the Punjab Civil Servants Act, 1974 nor they could claim seniority or confirmation against temporary project posts. In support of the submission, learned counsel relied on sections 6 and 7 of the Civil Servants Act read with Rule 7(i) of the Punjab Civil Servant (Appointment and Conditions of Service) Rules, 1974;

(iii) that the On-Farm Water Management Projects were closed in the year 1999-2000 and 444 permanent personnel were ordered to be adjusted against permanent posts on the basis of their length of service under the temporary projects which is reflected from letter dated 12-4-2000 issued by Director-General Agriculture (Water Management) Punjab, Lahore. Those employees were accordingly adjusted but there is nothing on record to indicate that those were adjusted against permanent posts and therefore, they could not be placed senior to the appellants in the seniority list;

(iv) that the observation/finding of the Tribunal to the effect that mere switching over of posts from 'development' to 'non-development' side did not alter the regular nature of appointments, terms and conditions of service or nature of Functional Unit/cadre and seniority of parties underpins a miscomprehension of law. The finding to the effect that the terms 'non-development' and 'development' only indicate the budgetary procedure and source from which the civil servants draw their pays but would not control or govern the seniority of the employees, is not sustainable in law;

(v) that the learned Service Tribunal did not appreciate that delay in challenging the seniority list could not have non-suited the appellants as the relegation of their seniority position being violative of law and the rules was a recurring cause of action and could be challenged at any time;

(vi) that the learned Service Tribunal fell in error in not appreciating that any person who is appointed against a project post on year to year basis and for a specific assignment/project cannot be assigned seniority vis-a-vis the appointees on regular basis against permanent posts or against 'non-development' posts, which otherwise are permanent in nature and that it is well settled law that even an ad hoc employee who is appointed against a permanent post cannot have his ad hoc service counted towards seniority as laid down by this Court Sabir Zamir Siddiqui v. Abdul Malik (PLD 1991 SC 226), Ahsanullah A. Memon v. Government of Sindh (1993 SCMR 982) and Abdul Rashid Khan v. Muhammad Saleem Akhtar (1996 SCMR 1163);

(vii) that the learned Tribunal has not examined as to whether respondents were in the regular cadre of Agriculture Department or whether they were regular appointees in the Project and what was the effect of abolition of posts, their merger and adjustment in the regular cadre.

5. In support of the submissions made, learned counsel relied on Muhammad Younas Jaffar v. Government of Pakistan (PLD 1996 SC 86) and Din Muhammad v. Director-General Pakistan Post Office (2003 SCMR 33 at page 338).

5. Learned counsel for the private respondents Mr. Shoaib Shaheen defended the impugned judgment and made following submissions:--

(i) that the appellant in Civil Appeal No.1288 of 2008 was appointed against a temporary vacant post sanctioned for On-Farm Water Management Development Project; he joined on 19-8-1987 and that a bare reading of his order of appointment dated 14-7-1987 would indicate that his appointment was on temporary basis and he had accepted the post on terms and conditions stipulated in the said order. Prior to his appointment against the afore-referred post, he was offered and appointed Water Management Specialist in the "On Farm Water Management Development Project" in NPS-17 vide the order dated 5-2-1981. This appointment was made under the special rules titled as 'On-Farm Water Management Development Project Service Rules, 1977' read with Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and all such posts were temporary. In terms of the afore-referred Rules, he added, all the appointments were to be made through Punjab Public Service Commission and those, which were to be filled by promotion were filled on the recommendation of the appropriate Departmental Promotion Committee. Since the appellant is beneficiary of those rules, he cannot turn around and challenge their vires.

(ii) that respondent No. 4 in both the appeals (Muhammad Ashraf) was directly recruited as Assistant Agriculture Engineer (BS-17) on 1-4-1980; that on his selection by the Punjab Public Service Commission, he was also offered temporary post of Water Management Coordinator in BPS-18 vide letter dated 17-4-1985 which he accepted and joined on 8-5-1985 and since then he is in service. Thus his date of appointment is earlier to that of the appellants and he has correctly been placed as senior to the appellants;

(iii) that appellant in Civil Appeal No.1289 of 2008 namely Amjad Saleem was also directly recruited as Assistant Agricultural Engineer (BS-17) against temporary post and he joined as such on 23-7-1981. The appellant's contention that it was a permanent post is absolutely incorrect, which is evident from the appointment order bearing No.SO(Mech) Estt.14(8)/79 dated 23-7-1981. This appointment like that of appellant in the connected appeal was made under On Farm Water Management Development Project Service Rules, 1977, as amended in terms of notification dated 19-9-1992 and it was in consequence of those amended rules that this appellant was promoted as a Project Director (Engineering) in BS-18 with effect from 5-10-1992 on regular basis against a temporary post.

(iv) that seniority list of BS-18 had been issued from time to time by the Department wherein the respondents had always been shown senior to the appellants and the appellants never objected to the same and it is rather late in the day for them to challenge it now.

6. Learned Additional Advocate-General Mr. Jawwad Hassan while defending the impugned judgment submitted as follows:--

(i) that ever-since the appointment of appellants in the Department, 9 lists were published by the Department on various dates prior to the one which is subject matter of these appeals and those were never challenged by them. This, according to him, reflects acquiescence and they cannot now raise any objection to the final seniority list issued on 30-9-2003. Appellants have made grievance against the seniority list after a lapse of 15 years which besides reflecting contumacious conduct is indicative of the fact that they accepted the list as correct.

Learned Law Officer has placed on record a breakup of seniority lists of the BS-18 officers of Water Management Wing of Agriculture Department circulated/finalized and issued from 30-5-1985 to 30-9-2004 which are being placed on record as Annex. 'A' and relied on Wazir Khan v. Government of N.-W.F.P. (2002 SCMR 889) and Rashida Asif v. Aasia Gondal (2010 SCMR 450).

7. We have considered the submissions made by learned counsel for the parties as also learned Law Officer and have also gone through the precedent case-law to which reference has been made at the bar.

8. The issue raised in these appeals would require examination of the terms and conditions of initial appointments of both the parties, the effect of abolition of certain posts after the completion of projects in the Water Management Wing of the Agricultural Department and the criteria of adjustment of the incumbents on the posts so abolished (which included the respondents) and its effect on inter se seniority. A comparative study of the terms and conditions stipulated in the offer of initial appointment in BS-17 of appellants Ch. Liaquat Ali (In C.A. 1288 of 2008) and Amjad Saleem (In C.A. 1289 of 2008) and respondent No.4 in both the appeals would indicate that notwithstanding the difference in nomenclature of the posts, appointment of both the parties were in BS-17, both were temporary, both were appointed pursuant to the recommendations of the Punjab Public Service Commission and against sanctioned posts. The same is reproduced hereunder:--

Ch. Liaquat Ali

Appellant in Civil Appeal No.1288 of 2008

"REGISTERED

No. SO (Mech) Estt. 14(2)/79

GOVERNMENT OF THE PUNJAB

AGRICULTURE DEPARTMENT.

Dated Lahore, the 1-1-81

Mr. Liaqat Ali son of Ghulam Rasool,

Chak No. 519/GB, Post Office same

Toba Tek Singh, District, Faisalabad.

Subject: RECRUITMENT TO THE POST OF WATER MANAGEMENT SPECIALIST IN ON FARM WATER MANAGEMENT DEVELOPMENT PROJECT

On the recommendation of the Punjab Public Service Commission, you are offered the post of Water Management Specialist in the On Farm Water Management Development Project in NPS-17 i.e. Rs.900-50-1150/60 -1750 plus Rs.150 Special Pay and such other allowances as may be sanctioned by the Government from time to time for this post, on the following terms and conditions:--

(i) The post which is being offered to you has been sanctioned by Government on temporary basis but is likely to continue.

(ii) Your employment will be temporary and your services may be terminated at any time without any reason being assigned, irrespective of the fact that you may be holding a post other than this. In case you want to resign at any time, one month's notice will be necessary or in lieu thereof one month's pay may be forfeited.

.............................................................................

Sd/-

UNDER SECRETARY

(MECH)

for Secretary to Government of the Punjab, Agriculture Department."

Ch. Muhammad Ashraf Respondent No. 4 in both the appeals

"REGISTERED No. SO (Mech) Estt. 12(7)/79 GOVERNMENT OF THE PUNJAB AGRICULTURE DEPARTMENT. Dated Lahore, the 12th January, 1980

Ch. Muhammad Ashraf,

son of Ch. Nisar Hussain,

House No. 1239/7, Street No. 92,

Bengali Mohallah, Sadar, Lahore.

Subject : RECRUITMENT TO THE POST OF AGRICULTURAL ENGINEER IN ON FARM WATER MANAGEMENT DEVELOPMENT PROJECT

On the recommendation of the Punjab Public Service Commission, Lahore, you are offered the post of Assistant Agricultural Engineer in the Agriculture Department in NPS-17 i.e. Rs.900-50-1150/60-1750 plus such other allowances as may be sanctioned by the Government from time to time on the following terms and conditions:--

(i) The post which is being offered to you has been sanctioned by Government on temporary basis but is likely to be extended further;

(ii) Your employment will be temporary and your services may be terminated at any time irrespective of the fact that you may be holding a post other than the one to which you were originally recruited. In case you want to resign at any time, one month's notice will be necessary or in lieu thereof one month's pay may be forfeited.

..............................................................................

Sd/- UNDER SECRETARY (MECH) For Secretary Agriculture."

Amjad Saleem Appellant in Civil Appeal No.1289 of 2008

"REGISTERED

No. SO (Mech) Estt. 14(8)/79 GOVERNMENT OF THE PUNJAB AGRICULTURE DEPARTMENT, Dated Lahore, the 23-7-1981

Mr. Amjad Saleem

House No. 9, Street No. 6,

New Dharampura (Mustafabad), Lahore.

Subject: RECRUITMENT TO THE POST OF ASSISTANT AGRICULTURAL ENGINEER GRADE-17

On the recommendation of the Punjab Public Service Commission, you are offered the post of Assistant Agricultural Engineer in the scale of Rs.900-50-1150/60-1750-Certified that there is no audit/advance/printed para against the officer-2250 @ Rs.900 p.m. plus such other allowances as may be sanctioned by the Government from time to time for this post, on the following terms and conditions:--

(i) The post which is being offered to you has been sanctioned by Government on temporary basis upto 31-5-1982.

(ii) Your employment will be temporary and will stand automatically terminated on 31-5-1982 irrespective of the fact that you may be holding a post other than this. In case you want to resign at any time, one month's notice will be necessary or in the lieu thereof one month's pay may be forfeited.

...............................................................................

Sd/- UNDER SECRETARY (MECH) for SECRETARY AGRICULTURE, PUNJAB"

9. Even subsequent appointment of appellant Ch. Liaquat Ali (in C.A. No.1288 of 2008) as Agricultural Economist in BS-18 was against a temporary post and on the same terms and conditions as reflected in his initial appointment. In the first seniority list issued after his appointment in BPS-18 (circulated on 30-6-1988), he was placed at Sr. No.22 and shown junior to the respondents.

10. As mentioned earlier, appellant in Civil Appeal No.1289 of 2008 (Amjad Saleem) was initially appointed as Assistant Agricultural Engineer in terms of the order bearing No. SO(Mech) Estt. 14(8)/79 dated 23-7-1981 and subsequently promoted to BS-18. In the comments submitted by the Secretary Agriculture in his appeal before the Service Tribunal, while explaining how he was promoted and against which post, it was averred that "factually, he was promoted in BS-18 on 5-10-1992 as Project Director (Engg.) under "Second Barani Area Development Project (Water Lifting Devices Component) and was placed at S. No.40 of seniority list of the respective cadre. After closure of this project/scheme on 30-6-1997, the said post was abolished and the appellant had been adjusted against equivalent cadre post." It is not denied that in the first seniority list issued after that i.e. on 30-4-1993 he was placed at Sr. No.40. Another periodical inter se seniority list was issued on 10-8-1997 wherein he was placed at Sr. No.39. Both these lists were never challenged and it was only the list issued on 30-9-2004, which was made subject of dispute.

11. The argument of the appellants' learned counsel that since the respondents were appointed against certain projects, which were abolished and were adjusted against certain posts after abolition of the earlier posts which they held and therefore, their seniority should be reckoned from the date of adjustment is neither borne out from the nature of posts on which respondents were initially appointed nor it was so provided in the criterion of adjustment issued by the competent authority in the Provincial Government after abolition of posts. The said criteria is given in the letter placed on record by the appellants from the office of Director General to Secretary Agriculture (in Civil Appeal No.1288 of 2008 at page 144), which reads as follows:--

"No. 4776/DGA/WM/5-2-II/Estt: DIRECTORATE GENERAL AGRICULTURE (WATER MANAGEMENT) PUNJAB, LAHORE. Dated Lahore, the 26-2-2004.

The Secretary

Government of the Punjab,

Agriculture Department, Lahore.

SUBJECT: RE-DESIGNATION OF POSTS UNDER WATER MANAGEMENT WING OF AGRICULTURE DEPARTMENT.

Kindly refer to Government of the Punjab, Agriculture Department letter No. S.O.A(B)1/420/2000 dated 17-1-2004 on the subject noted above.

Annotated reply of information asked vide above mentioned letter is submitted for perusal and further necessary action.

S. No.

Documents required

Copy of orders wherein the posts were abolished

On promulgation of Local Government Ordinance, 2001, the Directorates (Field), Lahore and Multan functioning under Water Management Wing of Agriculture Department were closed and posts of Directors (BS-19) and Technical Officers (BS-18) were abolished vide Government of the Punjab, Agriculture Department notification No.SOA (B)1(420)/2000 dated 3-9-2001 (Annexure "A") with effect from 1-9-2001…

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