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Petitioner: Ch. LIAQUAT ALI and anothers VS Respondent: PROVINCE OF PUNJAB and others
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Tasaddaq Hussain Jillani, Tariq Pervez Title: Ch. LIAQUAT ALI and anothers vs PROVINCE OF PUNJAB and others Case No.:Civil Appeals Nos. 1288 and 1289 of 2008Appeals Nos. 2931, 2932 and 2933
JUDGMENT
Reported As: 2012 PLC (C.S.) 1477, PLJ 2012 SC 884, 2012 SCMR 1700 Result: Appeals dismissed Judgment 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.
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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 aforementioned 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 monetary 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
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cannot be assigned seniority visa-a-visa 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 SCM R 982) and Abdul Rashid Khan v. Muhammad Saleem Akhtar (1996 SCM R 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. Govt. 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:- a (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 Ashrat) 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:--
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(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 SCM R 889) and Rashida Asif v. Aasia Gondal (2010 SCM R 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. ....................................................................................................................... ....................................................................................................................... .......................................................................................................................
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........................................................................................................................ 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 ' To ' Ch. Mohammad 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
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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 posh 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. ' To ' The Secretary ' Government of the Punjab, ' Agriculture Department, Lahore.
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' SUBJECT:. RE-DESIGNATION OF POSTS UNDER WATER MANAGEMENT WING OF AGRICULTURE DEPARTMENT. ' Kindly refer to Government of the Punjab, Agriculture Department letter No, S. 0 . 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 Reply 1. Copy of orders wherein the posts were abolishedOn 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 Of ficers (BS-18) were abolished vide Government of the Punjab, Agriculture Department notification No.S0A (B)1(420)/2000 dated 3-9-2001 (Annexure "A") with ef fect from 1-9-2001 In addition, posts with following nomenclature were discontinued on the completion of dif ferent OFWM projects:-
1. Project Director in BS-18 2. Deputy Director (Irrigation Agronomy) in BS-18 3. Deputy Director (Engineering) in BS-18 4. Assistant Director (Liaison) in BS-17 5. Assistant Director (Engineering) in BS-17 6. Assistant Director (Monitoring and Evaluation) in BS-17 7. Agricultural Of ficer in BS-17
As advised by the Government vide order No.SO(A-III)3-1/2000 dated 30-1 1-2001 (Annexure "B"), the incumbents appointed/promoted against the above-mentioned posts have been adjusted as per given criteria. (a) In the light of the notified seniority lists officials/of ficers in WM Wing, the senior most of fidials/ of ficers would be adjusted against budged posts as on 1-1-2002 corresponding to the basic scale qualifications as explained below: (i) The posts comprise of various categories like Water Management Coordinator/District Of ficers OFWM, Agricultural Economist etc. for filling of which, prescribed set of qualifications have been laid down under Punjab Agriculture Department, OFWM Development Project Recruitment Rules, 1977. Adjustment against these posts would be made from senior most of ficers/of ficials who qualify for the same. Where the post would not be available in the higher scale, the officer/of ficial would be adjusted in the lower scale against the post from which he was promoted. (ii) Those recruited directly in the higher scale
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would not be reverted to a lower scale/post. They would be adjusted against the post corresponding to their qualification. If no such post will be available, they would be placed on redundant staf f list, which are to be laid of f: (Emphasis is supplied) (b) The adjustment as per a(i) would be made against 1,372 posts available on the non-development side and other project posts, which shall continue after 1-1-2002. (c) The names of the of ficers/of ficials reflected in the notified seniority list, who have since expired, retired or dismissed from service, would be deleted. No. of posts for each category sanctioned on permanent side and strength of of ficers for each are indicated below
Sr.No. BS Post Sanctioned Officers Available 1. 18 43 41 2. 17+sp 134 127 3. 17 88 222(*) Perusal of above would indicate that all available officers selected/recruited in BS-18 and BS-17 +sp can be adjusted against the available vacancies. Their posts are, however , required to be redesignated according to the new recruitment rules framed by the government for Water Management wing of the Agriculture Department as requested vide this office letter No.15931/DGA/OFWM/5-2-II/Estt: dated 19-7-2003. (*) There are 222 regular Water Management Officers and Agricultural Officers working in SNE and different projects. The post of Agricultural Officer is going to abolish on the closure of NDP Project on 30-6-2004. Only post of Water Management Officer will exist in SNE and newly commissioned projects from 1-7-2004. The Agricultural Officers have same qualifications as those of Water Management Officer. They can, however , be adjusted against these posts after their redesignation. This requires re-designation of post of Agricultural Officer also as Water Management of ficer. 2. Copy of orders wherein the posts of W ater Management Coordinator and W ater Management Specialist were re-designated.The posts of W ater Management Coordinator and W ater Management Specialist were re-designated by the Finance Department and conveyed vide…
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