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Petitioner: IJAZ AHMAD BHATTI VS Respondent: DEPUTY DIRECTOR FOOD, LAHORE REGION
1986 P L C (C.S.) 52
[Service Tribunal Punjab]
Present: S. Abdul Jabbar Khan, Chairman, Abdul Hamid Chaudhry and Mian Faiz Karim, Members
IJAZ AHMAD BHATTI and 3 others
versus
DEPUTY DIRECTOR FOOD, LAHORE REGION and others
Cases Nos. 427/825, 120/599, 257/745 and 126/578 of 1984, decided on 23rd December, 1984.
(a) Civil service‑‑
‑‑‑ Tribunal's Order‑‑Passed by exceeding its defined jurisdiction‑ Nullity, void ab initio and entire series of order passed on basis of such orders are equally void‑‑Employee of ministerial cadre of Food Department appointed validly by Government to executive cadre in relaxation of rules and such appointment acted upon‑‑Punjab Civil Service Appellate Tribunal competent only to decide appeals against orders of competent authorities vis‑a‑vis seniority of Government Servants passing order that appointment in relaxation of rules to executive cadre could not be made‑‑Order passed by Punjab Civil Service Appellate Tribunal, in circumstances, held, beyond its jurisdiction ‑Department, held, not justified in acting upon such void and illegal judgment of said‑defunct Tribunal‑‑Subsequent order passed by Department contrary to earlier order regarding appointment to executive cadre of appellant in relaxation of rules and consequential seniority and promotion in executive cadre, held, would not fall within purview of locus poenitentiae‑‑Service Tribunal, in circumstances, setting aside subsequent order and restoring earlier order with consequential benefits of seniority‑‑Punjab Civil Service (Appellate) Tribunal Ordinance (IV of 1970), S. 4‑‑Punjab Service Tribunals Act (IX of 1974)‑‑S. 4, West Pakistan Food Department Subordinate Executive Establishment Recruitment Rules, 1962, rr. 5(b) & 12.
P L D 1962 S C 367; P L D 1968 S C 37 and P L D 1973 S C 236 rel.
(b) Civil service‑‑
‑‑‑ Promotion‑‑Pro forma promotion‑‑Creates vested right of seniority‑ Cannot be withdrawn if once granted and acted upon.
Raja Muhammad Nawaz v. Government of Punjab 1981 S C M R 523 rel.
Masud Ahmad Riaz for Appellants (in Cases Nos. 427/825 and 120/599).
Ch. Mushtaq Masood for Appellant (in Case No. 257/745).
Sh. Abdul Qayyum for Appellant (in Case No. 126/578).
Riaz Anwar and M. Iqbal Chaudhry for contesting Respondent‑4 (in all Cases).
A.G. Humayun, District Attorney for Respondent‑Government.
JUDGMENT
S. ABDUL JABBAR KHAN (CHAIRMAN).‑‑ Messrs Ijaz Ahmad Bhatti (Appeal No. 427/825 of 1984), Ghulam Bari (Appeal No. 120/599 of 1984), Muhammad Bashir (Appeal No. 257/745 of 1984) and Abdul Latif (Appeal No. 126/578 of 1984) all Food-grains Inspectors, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which respondents Nos. 1, 2 and 3 are common which are departmental authorities whereas the contesting respondents vary in number in their respective appeals. List of all those contesting respondents are attached with each and every appeal. The impugned orders are also common passed by Director Food as well as by Deputy Director Food, Lahore, and law point involved are identical in nature, therefore, we will dispose of all these appeals by our this single judgment.
2. By virtue of these appeals they have challenged the impugned orders dated 8‑11‑1983/12‑11‑1983 of Director Food and resultant orders dated 24‑11‑1983/10‑12‑1983 for Deputy Director Food Lahore Region, Lahore, and have prayed that the same be set aside and appellants be declared senior to the contesting respondents.
3. Brief facts of the case relating to the appellants are enumerated below:‑
IJAZ AHMAD BHATTI:
The appellant was originally appointed as Card Checker on 13‑1‑1953, in the office of Rationing Controller, Lahore. He was subsequently appointed as Junior Clerk, w.e.f. 28‑2‑1953. The appellant represented against his change of cadre and restoration of his appointment. Ultimately his representation was accepted and appellant's lien was transferred to the post of Food-grains Supervisor by order dated 3‑10‑1966. In the year 1967 he was again reverted as Junior Clerk. He gave a legal notice under section 80, C.P.C. on the respondents for this reversion. The matter was referred to the Solicitor to Government of the West Pakistan, who advised that the Department had no locus poenitentiae to review or rescind earlier orders whereby the appellant had been absorbed as Supervisor with effect from 28‑2‑1953, which had duly been effected, to and acted upon. Consequently the earlier order dated 30‑8‑1967, was withdrawn vide order dated 2‑3-1970, The appellant was subsequently promoted as Food-grains Inspector w.e.f, 22‑10‑1969 on proforma basis and was actually promoted as Food-grains Inspector w.e.f. 20‑3‑1970, vide order of even date. The appellant was placed on one year's probation by the same order. The order was duly implemented and acted upon. Consequently the Food and Co‑opera tive Department issued order dated 25‑5‑1972, according to which rule 5 (b) of the West Pakistan Food Department Subordinates Executive Establishment Recruitment Rules, 1962, were relaxed in exercise of the powers of relaxation provided under rule 12 ibid. The appellant was appointed as Food-grains Supervisor w.e.f. 28‑2‑1953. The aforesaid order was challenged by one Tauqir Ali Shah before the former Punjab Civil Services (Appellate) 'tribunal in Appeal No. 208/160 of 1972. 'File Tribunal was pleased to set aside the aforesaid order, dated 25‑5‑1972, and made the following observations:‑
"For the reasons stated above, we set aside the order of respondent No.1 dated 25‑6‑1972 and direct that the question of absorption: of respondents Nos. 3 and 4 on the executive side as well as the question of their seniority with retrospective effect on that side may be re‑examined and decided in the light of observations made by us. We, therefore, accept this appeal, leaving the parties to bear their own costs. The security deposited by the appellant should be refunded to him."
Thereafter Ijaz Ahmad Bhatti exercised revised option, dated 21‑8‑1973, for his absorption in the Executive Cadre and to allow him as Food-grains Inspector in his own rights as existed at that time. At this stage the matter was referred to the Law Department who gave opinion on 8‑i1‑1973, suggesting that the appellant be reverted to Ministerial Cadre after giving him notice to this effect. On the basis of that advice, a show‑cause notice dated 5‑12‑1973 was issued to the appellant as well as to one Muhammad Zulfiqar, "to show cause as to why you should not be reverted to your original cadre i.e. Ministerial." On receiving that show‑cause notice, the appellant submitted an application dated 17‑6‑1974, in which he referred to the previous history of the case and made the following request: ‑‑
"In order to put an end to this issue, 1 request that my seniority in the Executive Cadre may be fixed w.e.f. 3‑10‑1966, the date from which I was appointed as Food-grains Supervisor instead of granting me seniority w.e.f. 28‑2‑1953."
Upon this the Administrative Department made a detailed reference dated 26‑6‑1974 to the Secretary, Food Department, Government of Punjab, in which he proposed that the appellant should be allowed to continue in the Executive Cadre with change in the dates of seniority and promotion as Food-grains Inspector and according to him this would solve the problem. Thereafter a Gradation List dated 28‑10‑1977 was issued in which the appellant was shown at serial No. 215 with, dated 3‑10‑1966 and 1‑5 1974, as dates of his appointment as Food-grains Supervisor and Food-grains Inspector respectively. Thereafter by order dated 17 8‑1980 the appellant was confirmed as Food-grains Inspector. Another seniority list dated 7‑12‑1980 was issued wherein the appellant was placed at serial No. 25, but in this seniority list the date of his promotion as Food-grains Inspector was shown as 20‑3‑1970. The appellant submitted a representation against his placement and the change of date to the Director Food Punjab. On his representation the Director Food Punjab issued notices to all the Inspectors who were going to be affected. They were heard by the Director Food Punjab. After giving personal hearing to all concerned the Director of Food Punjab, passed a detailed order dated 24‑5‑1983, whereby he restored the appellant's seniority. On the basis of that order the Deputy Director Food, Lahore Region, Lahore, issued order dated 31‑5‑1983, whereby he fixed the seniority of the appellant below Ch. Abdul Hakim and above Ch. Muhammad Bashir. In the Gradation List of Food-grains Inspectors as it stood on 15‑9‑1982, he was placed at serial No. 14. It was also ordered that in 1988, he would rank below Muhammad Bashir Khan and above Muhammad Bashir Mirza. Copies of these orders were endorsed to the affected persons namely, Muhammad Bashir Khan, Muhammad Bashir Mirza, Ghulam Bari, Abdul Latif, Muhammad Anwar Mirza, Ch. Jan Muhammad, Jalil Akhtar Hashmi, Javed Ahmad Qureshi, Rana Abdul Wadood and Ch. Abdul Hakim. Messrs Manzoor Ahmad and Maqbool Ahmad Cheema, contesting respondents, who were junior to the personb to whom copy of the said order was endorsed made a representation to the Director Food Punjab, that "there wigs a representation so made earlier by them pending with film, the same may be decided and the respondents be declared senior to all the appellants." The same Director Food Punjab vide his impugned order dated 8‑11‑1983 withdrew his earlier order dated 24‑5‑1983 and declared the respondents senior to the appellant, and placed Ijaz Ahmad Bhatti (appellant) at serial No. 71 below the respondents. His action, according to him, was based on a judgment of the Punjab Civil Service (Appellate) Tribunal dated 24‑1‑1973, which according to him, had come to his notice now. On the basis of this order the Deputy Director Food, Lahore Region, Lahore, issued order dated 24‑11‑1983/10‑12‑1983, whereby he Implemented tile said order of the Director of Food Punjab and placed the appellant at serial No. 70 of the Gradation List of Food-grains Inspectors as it stood on 15‑9‑1982, and also declared that the earlier order dated 31‑5‑1983, was withdrawn. The appellant filed Appeal No. 656/535 of 1983, before this Tribunal which was admitted for regular hearing. However by our order dated 1‑2‑1984, the appeal was disposed of with the direction that he should avail the opportunity of representation to the next higher authority. Accordingly after filing representation and waiting for its decision for 90 days, he filed the present appeal.
GHULAM BARI:
He was appointed as Card Checker in the Executive Cadre of Food Department in January, 1953 and was transferred to Ministerial Cadre as Junior Clerk on 28‑2‑1953. He also gave legal notice under section 80, C.P.C., when he was so reverted and the matter was referred to the Services, General Administration Department and Law Department who advised against his reversion. Accordingly by order dated 5‑7‑1977, he was absorbed as Food-grains Supervisor w.e.f. 3‑10‑1966. By order dated 21‑1‑1980, the post of Food-grains Inspector was created to enable the appellant and Abdul Latif to draw their pay from 22‑10‑1969 to 31‑1‑78. By a subsequent order dated 5‑3‑1980, he was given pro forma promotion as Inspector w.e.f. 22‑10‑1969, on the advice of the Government. By the same order he was placed below Muhammad Bashir Mirza, and above Jalil Akhtar Hashmi. In para. 2 of the same order, objections were invited from all concerned whose seniority was likely to be affected and it was provided that if no objections were received within 3 weeks. It would be presumed that there was no objection from any body. By order, dated 12‑5‑1980, a final order regarding change of cadre and grant of pro forma promotion as Food-grains Inspector to the appellant w.e.f. 22‑10‑1969, was issued and his seniority was fixed on the lines of earlier order. He was confirmed as a Foodgrains Inspector by order dated 17‑8‑1980, by the competent authority. These orders were given effect in the seniority list dated 13‑12‑1980 wherein he was placed at serial No.19 and date of his promotion as Foodgrains Inspector was also shown as 22‑10‑1969, and contesting respondents were placed below him. Objections were also invited on this seniority list but no such objections were filed by any of the respondents. On 25‑1‑1982, respondent No. 77 Mr. Maqbool Ahmad Cheema made a representation which was rejected by the Deputy Director Food on 24 3‑1982. Again a representation was filed on 11‑4‑1982 by him. Except Messrs Maqbool Ahmad Cheema and Manzoor Ahmad (respondents Nos. 77 and 14) no other contesting respondents filed any representation to the departmental authorities. The Director Food Punjab, passed the impugned order dated 8‑11‑1983/13‑11‑1983, and to implement this very order the Deputy Director of Food Lahore Region, passed order dated 24‑11‑1983/10‑12‑1983, and ordered that in view of change in the seniority the appellant should be reverted as Foodgrains Supervisor and earn his promotion as Foodgrains Inspector when due, considering the date of his appointment as Supervisor to be 5‑7‑1977. He filed Appeal No. 628/536 of 1983. This appeal was disposed of as being premature and direction was given that he should first avail the departmental remedy. Accordingly after filing representation and waiting for a period of 90 days and within 30 days he has filed the present appeal.
MUHAMMAD BASHIR:
He was originally appointed as Card Checker in the Food Department in July, 195'2 and was transferred as Junior Clerk on 28‑2‑1953, without obtaining his consent. The appellant represented against his revision and change of cadre. The matter was referred to the Service, General Administration Department and Law Department and ultimately the appellant's representation was accepted on the basis of the advice of the Department and by order, dated 7‑5‑1977, the appellant's lien was transferred to the post of Foodgrains Supervisor and he was allowed to count his seniority w.e.f. 28‑2‑1953. By order dated 9‑6‑1970, the appellant was promoted as Foodgrains Inspector and given pro forma promotion w.e.f. 24‑10‑1969. Accordingly the appellant drew his pay and allowances as Foodgrains Inspector w.e.f. 24‑10‑1969. By order dated 17‑8‑1983, he was confirmed as Inspector. In the seniority list dated 7‑12‑1980, the appellant was shown at serial No. 25 whereas the contesting respondents were shown junior to him. None of the respondents raised any objection to the appellant's proforma promotion as Inspector w.e.f. 24‑10‑1969 and fixation of his seniority in the aforesaid seniority list dated 7‑12‑1980. It was on 3‑2‑1982, that the contesting respondents filed representation to the Deputy Director Food, Lahore, in which they objected to the seniority assigned to the appellant. The said representation culminated in the passing of the impugned order of Director of Food Punjab on 8‑11‑1983/12‑11‑1983, whereby it was ordered that the seniority of the appellant be fixed in the cadre of Foodgrains Supervisor from the date he actually took over as such and in the cadre 'of Foodgrains Inspectors when he becomes due for promotion according to the seniority as Supervisor. On the basis of this order the Deputy Director Food issued impugned order dated 24‑11‑1983/10‑12‑1983, whereby he placed the appellant below Muhammad Sharif Bhatti at serial No. 12 and above Karamat Ali Shah. As Inspector he was placed below to Mukhtar Ahmad and above Karamat Ali Shah, appearing at serial No. 165 and 166. The appellant filed Appeal No. 659/587 of 1983, which was disposed of as being premature on 1‑2‑1984. Accordingly after filing representation and waiting for 90 days and then within 30 days he has filed the present appeal.
MUHAMMAD LATIF:
He also joined Food Department as Card Checker in the Executive Cadre on 19‑1‑1953 and was absorbed as Foodgrains Supervisor w.e.f. 3‑10‑1966. By order, dated 21‑1‑1980, he was granted pro forma promotion as Foodgrains Inspector w.e.f. 22 10‑1969. Later on he was confirmed as Foodgrains Inspector w.e.f. 17‑8‑1980. Before confirming the District Food Controller invited objections vide his letter dated 5‑3‑1980, from all those who were likely to be affected by promotion/ confirmation of the appellant and the period of such objections was fixed as three weeks. Since none of the contesting respondents raised any objection the aforesaid order, dated 5‑3‑1980 was confirmed by order, dated 29‑3‑1980. Further order, dated 12‑5‑1980, was issued whereby the appellant was again given proforma promotion as Foodgrains Inspector w.e.f. 22‑10‑1969. In this order it was clarified that the Finance Department had accorded sanction to the creation of post of Foodgrains Inspector. In the seniority list, dated 7‑12‑1980, the appellant was shown at serial No. 20 and the date of his promotion as Foodgrains inspector was shown as 22‑10‑1969. In this list the contesting respondent Maqbool Ahmad Cheema was shown at serial No. 104 as he had been absorbed as Foodgrains Inspector w.e.f. 10‑10‑1974. Maqbool Ahmad Cheema filed a representation dated 25‑1‑1982 challenging the appellant's promotion and it was rejected by order, dated 24‑3‑1982. Manzoor Ahmad, another contesting respondent filed his representation on 3‑2‑1982. In another seniority list of the Foodgrains Inspector as stood on 15‑9‑1982, the appellant was shown at serial No. 16 whereas the said two contesting respondents were placed at serial No. 95 and 30 respectively. On this representation the Director Food Punjab passed the impugned order, dated 8 11‑1983/12 11‑1983, according to which it was ordered that he should be reverted as Foodgrains Supervisor and earn his promotion as Foodgrains Inspector when due, considering his date of appointment as Foodgrains Supervisor to be 5‑7‑1977, and his promotion as Foodgrains Inspector by giving him seniority as Foodgrains Supervisor from back date was against the judgment of the Punjab Civil Service (Appellate) Tribunal. On the basis of that order the Deputy Director Food, Lahore Region, issued order, dated 24‑11 1983/10‑12‑1983. whereby the appellant, was reverted as Supervisor and it was ordered that he should be placed at the bottom of the seniority list of Foodgrains Supervisors as it stood on 28‑10‑1977. The appellant filed Appeal No. 629/488 of 1983, which was disposed of as being premature by order, dated 1‑2‑1984, with the direction that he should avail the departmental remedy. After filing representation and awaiting for 90 days and then within 30 days he has filed the present appeal.
4. We have heard the learned counsel for the appellants Messrs Masud Ahmad Riaz, Mushtaq Masood and Sh. Abdul Qayyum, Advocates as Mr. Riaz Anwar Asadi and Ch. M. Iqbal, Advocates, appearing on behalf of contesting respondents and learned District Attorney on behalf of respondent Government, and have perused the record of the case carefully with their assistance.
5. Learned counsel for the appellants have made out the following points: ‑
(i) The order, dated 24‑1‑1973 of the defunct‑Punjab Civil Services (Appellate) Tribunal was not a judgment as it did not determine finally the seniority rights of the parties. It was only a sort of interim order making certain recommendations to the departmental authorities regarding appointment of the appellant Mr. Ijaz Ahmad Bhatti in Executive Cadre and the departmental authorities were at liberty to pass such order as they deemed fit and when such orders were passed on 24 5‑1983 by the Director and on 31‑5‑1983 by Deputy Director Food, there was no violation of the aforesaid order, dated 24‑1‑1973 of the learned Tribunal.
(2) The said order of the learned Tribunal in so far it set aside the order, dated 25‑5‑1972 regarding appointment of appellant Ijaz Ahmad Bhatti by way of absorption, was beyond its jurisdiction as defined in section 4 of the Punjab Civil Services (Appellate) Tribunals Ordinance (Punjab Ordinance No. IV of 1970), and no right can be claimed by the respondents on the basis of such void order.
(3) As the order, dated 24‑1‑1973 of the said learned Tribunal was void being beyond its jurisdiction, therefore, the said order was not liable to be implemented by the departmental authorities and the impugned orders, dated 8‑11‑1983/19‑11‑1983, based on that void order, were equally void.
(4) The order, dated 24‑5‑1983 of the Director Food and the order, dated 31‑5‑1983 of the Deputy Director Food, restoring seniority of appellant Ijaz Ahmad Bhatti, were passed by these authorities after considering the said directions of the learned Appellate Tribunal. Consequently the said orders became final qua these authorities as the contesting respondents. As the said orders were duly issued and implemented and acted upon, these authorities were left with no locus poenitentiae to further review or rescind these orders, and thus to take away vested rights of pay and seniority which had accrued as a result of earlier order in favour of the appellants. Consequently the impugned orders passed by the same authorities in November, 1983, were bad in law.
(5) That the reason given in the impugned orders that the records have now been made available is not correct as all concerned were duly heard by the Director before passing order on 24‑5‑1983.
(6) The basic order of grant of pro forma promotion as Foodgrains Inspectors to Messrs Ijaz Ahmad Bhatti, Ghulam Bari and Abdul Latif were w.e.f. 22‑10‑1969 and Muhammad Bashir w.e.f. 24‑10‑1969, were still in tact as these orders had not been set aside by the learned defunct‑Civil Services (Appellate) Tribunal, in its aforesaid judgment. The said learned Tribunal duly took notice of these orders in their judgment but they were not set aside. Similarly the Departmental authorities had also not cancelled these orders at any stage. Since these orders are still in the field the date of their continuous appointments as Foodgrains Inspectors are 22‑10‑1969 and 24‑10‑1969, respectively. Consequently denial of seniority from these dates is illegal.
(7) When It was established on record that the objections of the Inspector senior to two respondents Messrs Maqbool Ahmad Cheema and Manzoor Ahmad, were duly rejection by Director on 24‑5‑1983 and they did not file any appeal before this Tribunal against the said rejection, conveyed to them by Deputy Director Food on 31‑5‑1983, their juniors Messrs Maqbool Ahmad Cheema and Manzoor Ahmad, would not be within their rights to agitate the same issue before this Tribunal, especially when these two officials were absorbed as Inspectors in 1972 and 1974.
(8) That according to section 7 of Punjab Civil Servants Act, 1974, as well as Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, seniority is to be counted from the date of continuous appointment. Since the date of continuous appoint ment of the appellants as Inspectors Is 22‑10‑‑1969, they had a legal right to count their seniority as Foodgrains Inspector from that date. The impugned orders being in contravention of the substantive provisions of law are liable to be set aside.
(9) It is a settled principle of law that proforma promotion once given created vested right and it cannot be withdrawn.
6. On the other hand learned District Attorney has adopted the comments submitted by the Department and has submitted that the impugned orders were liable to be maintained because the same were passed on the judgment of the Punjab Civil service (Appellate) Tribunal, which attained finality as no writ was preferred against the same.
7. Mr. Riaz Anwar Asadi, learned counsel for the contesting respondents has submitted that in fact the judgment of the Punjab Civil Services (Appellate) Tribunal, had set aside the basic order, dated 25‑5‑1972, regarding appellants absorption as Foodgrains Supervisors w.e.f. 28‑2‑1953, therefore, all the benefits later on, conferred upon them would stand vitiated. It has been vehemently argued on his behalf that it was absolutely wrong to say that the Civil Services (Appellate) Tribunal's judgment was not taken into consideration till passing of the impugned orders, as according to him, the same was implemented as far back as 1977, a fact which stood proved from the Gradation List as stood on 28‑10‑1977, Annexure/R‑7. He has laid lot of stress on Ijaz Ahmad Bhatti (appellant) own application dated 17‑6‑1974, wherein he had himself conceded that his seniority in the Executive Cadre be fixed from 3‑10‑1966, as Foodgrains Supervisor. It has been further submitted on behalf of the respondents that they were not heard when the order, dated 24‑5‑1983, was passed by the Director Food in favour of the appellants, therefore, the said order would not be effective against them. While concluding his arguments he submitted that as the basic order in favour of the appellants by which they were absorbed as Foodgrains Supervisor stood cancelled by the Civil…
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