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Petitioner: RUSTAM ALI VS Respondent: ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF PUNJAB, SGA & I DEPARTMENT
1984 P L C (C
1984 P L C (C. S.) 276
[Service Tribunal Punjab)
Present : S. Abdul Jabbar Khan, Chairman, Malik Zawwar Hussain and Abdul Humid Chaudhry, Members
RUSTAM ALI AND OTHERS
Versus
ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF PUNJAB, SGA&I DEPARTMENT AND 145 OTHERS
Case No. 579/1475 of 1981, decided on 2nd May, 1983.
(a) Punjab Civil Servants Act (VIII of 1974)‑,
‑‑ S. 4 read with West Pakistan Secretariat (Section Officers) Service Rules, 1962, r. 5 (b) [as amended on 16th July, 1973] Appointment on regular basis‑Can be made only in prescribed manner‑Plenary powers of Governor do not come within purview of mandatory provisions of S. 4 of Punjab Civil Servants Act, 1974 Section Officers promoted on ad hoc basis having not passed Depart mental Examination a condition precedent for promotion and thus superseded for that reason by those having passed requisite examination‑Governor, held, could not grant approval for regu larisation of ad hoc appointment of such Section Officers retrospec tively from dates of their ad hoc appointment which was on devia tion of prescribed rules.
1982 S C M R 408 ; 1983 P L C (C. S.) 247 ; 1980 P L C (C.S.T.) 134 ; 1982 P L C (C. S.) 194 and 1980 P L C (C. S. T.) 319 ref.
1980 S C M R 11 and 1982 S C M R 888 rei.
(b) Punjab Service Tribunals Act (IX of 1974)‑
S. 4 read with Punjab Civil Servants Act (VII of 1974), S. 2 (1) & (2)‑Limitation‑Appeal against order regularising ad hoc pro motion retrospectively‑ Plea that original ad hoc promotion order not having been challenged appeal against subsequent order of regu larisation with retrospective effect same ad hoc promotion was not maintainable‑Promotion found violative of rules‑Plea, in circum stances, repelled‑Held : Whether nature of appointment was regular or not has to be determined by law.
(c) Punjab Service Tribunals Act (VIII of 1974)‑
5. 4 (1), proviso (b)‑Appeal involving determination of seniority as a result of regularisation of ad hoc promotion retrospectively Fitness for promotion already determined by Departmental Promo tion Committee and competent authority‑Appeal, in circum stances, held, not hit by proviso (b) and same, held, maintainable.
1982 S C M R 408 and Muhammad Ashraf v. Secretary, Agriculture Department 1981 P L C (C. S.) 731 rel.
Masud Ahmad Riaz for Appellants.
A. G. Humayun, District Attorney for the Department.
Muhammad Rashid Malik for Respondent No. 7,
D. M, Awan for Respondent No.. 8.
JUDGMENT
S. ABDUL JABBAR KHAN (CHAIRMAN).‑M/S. Rustam Ali, Ch. Yusaf Ali, Muhammad Akram,_ Muhammad Munawar Tubassum and Nazar Hussain Shah, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, separately under numbers as given above. As the points of law and facts in all these appeals are identical in nature, therefore, we have decided to dispose of all these five appeals with this single judgment.
2. The appellants have impleaded the Additional Chief Secretary, Government of the Punjab Services, General Administration and Infor mation Department, Lahore, Secretary to Government of the Punjab, Services, General Administration and Information Department, Lahore, and respondents Nos. 3 to 146 as per list Annexure 'A' and respondents Nos. 147 to 155 as pro forma respondents as per list Annexure `A‑I'.
3. With regard to respondents Nos. 3 to 146, they can be divided into the following categories
"Two particular categories are Promotees and Direct Recruits Promotee respondents are respondents Nos. 3 to 18, 40 to 64 and 91 to 155 whereas Direct Recruits are respondents Nos. 19 to 39 and 65 to 90. It would be convenient to state here that among the promotees, the appellants have assailed the seniority of respon dents Nos. 3 to 31 on the ground that the notional dates of pro forma promotion given to them, were not justified and they also stood superseded when they were considered alongwith them. The other promotees respondents according to the learned counsel have no right of seniority over the appellants as even their actual dates of promotion are later than the appellants."
4. Brief facts of the case are that the appellants joined service in the Punjab Civil Secretariat, as Junior Clerks and Stenographers from various dates ranging from years 1944 to 1946. They were later on pro moted as Senior Clerks and then as Assistants, Stenographers/Private Secretaries. Similarly promotee respondents were also originally recruited as Junior Clerks and were later on promoted as Senior Clerks and Assis tants, respectively. Some of them joined as Stenographers and then were promoted as Senior Scale Stenographers and Private Secretaries. Accor ding to amended rule 5 of Section Officers Service Rules, 1962 and Section Officers Departmental Examination Regulations, 1973, Depart mental Examination for Section Officers, was conducted by the Punjab Public Service Commission on 22nd and 23rd May, 1974 and its result was announced on 27th December, 1974. According to the Notification, dated 27th December, 1974 whereas all the appellants were declared successful respondents Nos. 4, 5, 9, 17, 41, 50, 55, 60, 63, 93, 102, 103, 125, 128, 140, 141 and 144, were declared unsuccessful. As regards other promotee respondents, they did not appear in the examination at all. At the time of success of the appellants in the said examination, there were 30 vacan cies of Section Officers against promotion quota. Accordingly, the Departmental Promotion Committee met to consider the case of promo tion against those vacancies. A summary containing the recommenda tions of the Departmental Promotion Committee has been placed on the je4prd; which was approved by the then Chief Minister, on 27th January, 1975. According to this summary it was recommended/decided as follows :-
" 6. The question of regularization of appointment of 44 Section Officers promoted on ad hoc basis before the promulgation of Section Officers (Departmental Promotion) Examination Regulations 1973, was considered by the Departmental Promotion Committee for Grades 16 and 17 posts in the Punjab Secretariat in its meeting held on 28th November, 1974 and also the issue regarding promo tion of the officials who have already qualified in the Departmental Examination held in May, 1974. The Committee has made the following recommendations :‑
(i) that the 44 Section Officers may be promoted regularly w.e.f. the date vacancies are available prior to 23rd October, 1973 i.e. the date of the promulgation of Section Officers (Departmental Pro motion) Examination Regulations, 1973. Accordingly out of 44 Section Officers promoted on ad hoc basis, named in Annexure 'A' the 12 senior most Section Officers who were due, for regular promotion according to their seniority and were appointed on ad hoc basis may be regularised against the 12 available vacancies from the promotion quota (i.e. total of 75‑63‑12).
(ii) That the 18 vacant posts out of the quota reserved for former C.S.P./P.C.S. and Technical Officers should be diverted to the promotion quota with retrospective effect, i.e. from the date such vacancies were filled up on ad hoc basis by the method of pro motion. The persons appointed against these posts on ad hoc basis are to be regularized in their inter se order after temporary allocation of these posts to the promotion quota. This alloca tion is meant to be temporary for all intents purposes and when ever any vacancies occur in future from amongst these 18 posts, they will revert to the original quota of former C.S.P./P.C.S. and Technical Officers. The promotions shall be made on temporary basis.
(iii) That the remaining 14 Section Officers out of the 44 appointed on ad hoc basis before the promulgation of the Section Officers (Departmental Examination) Regulations, 1973, may be regularis ed against vacancies meant for deputation, leave reserve and training in the same manner set out in sub‑para. (it) above.
The Committee observed that it has agreed to the above arrange ments in order to prevent hardship to these Officers and to ensure that no serious vacuum occurs and that the interest of administra tion itself does not suffer by displacement of sizeable group of experienced officers, In this proposed arrangement, the posts and quota of direct recruits has not been touched."
7. "The other recommendations made by the Departmental Promo tion Committee are as follows :‑
(i) That the 18 Section Officers promoted on ad hoc basis after the promulgation of the Section Officers (Departmental Promotion) Examination Regulations, 1973, named in Annexure'B' shall stand reverted after the expiry of their present tenure, but in any case within six months from 24th August, 1974 Le. the date of enforcement of the Punjab Civil Servants (Appointment and Con ditions of Service) Rules ;
(ii) that the officials who have qualified in the Section Officers (De partmental Promotion) Examination Regulations, 1973 may be promoted in their inter se order against available vacancies im mediately and in any case against the vacancies caused by the reversion of the Officers as stated in sub‑para. (i) above. These officials are to be promoted on temporary basis and not on ad hoc basis. The temporary promotion of all these officials shall be subject to availability of vacancies at the time and if no vacancy is available, the junior‑most person shall be reverted in accor dance with subsection (2) of section 10 of the Punjab Civil Ser vants Act, 1974. The Committee, however, clarified that Assistants and Senior Scale Stenographers having 12 years of total service not continuous are eligible for promotion ;
At present some Superintendents of the Secretariat have obtain ed a stay order against promotion which were to be made on the basis of the examination by filing suit in the civil Court challenging the validity of the Section Officers (Departmental Promotion) Examination Regulations, 1973. Orders promoting these officials therefore, would issue after the stay order have been vacated, for which Government has filed an appeal."
Accordingly, it is clear that the appellants as well as contesting respondents 3 to 13 were considered together for the purpose of promotion, whereas the Departmental Promotion Committee recommended the appel lants for promotion and the then Chief Minister approved there for promotion as Section Officers in a temporary capacity but not on ad hoc basis, it was ordered that the said respondents shall stand reverted. Accordingly the appellants were promoted vide Notification, dated 23rd May, 1975 and their date of promotion has been shown as 23rd May, 1975. Although at that time it was ordered by the competent authority that the aferesaid respondents shall stand reverted yet somehow or other no reversion took place and they continued to work as such, on ad hoc basis. It may be mentioned here that they had been promoted as Section Officer on ad hoc basis from 17th April, 1974.
5. Subsequently Notification, dated 23rd October, 1979 was issued whereby respondents' ad hoc promotions were regularized w. e. f. 17th April, 1974 (in case of respondents Nos. 3 to 12) and w.e.f. 27th April, 1974 in respect of respondent No. 13.
6. The second group is promotee respondents viz. 14 to 18, 40 to 64, 91 to 146 and they were promoted as Section Officers on regular basis from various dates which have been shown against their names to the im pugned seniority list. In any case these dates are admittedly later than 23rd May, 1975 the date on which the promotion of the appellants was duly notified. Respondents Nos. 19 to 39 and 65 to 90 were Direct Re cruits through Public Service Commission, who were inducted in service from the dates as mentioned in the impugned seniority list, against their names admittedly later than 23rd May, 1975.
7. In the first instance, Government of the Punjab issued Notification dated 2nd November; 1980, which contains two parts. In the first part, seniority list of Under‑Secretaries, Section Officers and Superintendents of Punjab Secretariat, as stood on 1st October, 1980 was notified. In this list all the respondents were shown. The second part of this notification contained a list of Section Officers other than those appointed on regular basis. It contained the following head note
"Their seniority will be determined in accordance with the provision of section 7 of the Punjab Civil Servants Act, 1974."
Appellants names were shown in this list. Since the seniority of the appellants qua the respondents, was not fixed they represented for fixation of their seniority. It was brought to our notice during the course of arguments that the appellants filed Writ Petition No. 3154/3 of 1979 in the Lahore High Court, Lahore, in which they inter alia, prayed that Govern ment of Punjab, be directed to prepare and issue a final seniority list of Section Officers. Ultimately Government issued impugned final seniority list on 21st October, 1981 wherein the appellants have been shown junior to all the promotee and Direct Recruit respondents. Their re presentations were also rejected vide order, dated 13th October, 1981. Hence these appeals.
8. We have heard the learned counsel for the appellants Mr. Masud Ahmad Riaz, Mr. D. M. Awan, Learned Counsel for respondent No. 8 Muhammad Ajaib Malik and Mr. Muhammad Rashid Malik, learned Counsel for respondent No. 7 Muhammad Aslam Khan, and have also heard at length in person M/s. Muhammad Amir, Ghulam Afzal Khan and Nazar Hussain Hashmi, and have perused the record of this case care fully with their assistance.
9. Learned counsel for the appellants has submitted that all the appellants in this case were promoted in the prescribed manner, as they fulfilled all the requisite conditions, therefore, their promotions would be for all purposes, promotions on regular basis. Accordingly to learned counsel the nomenclature like word "Temporary" used in the case of the appellants, has got no meaning at all, as the very fact that they have been promoted in the prescribed manner, would make them regular as Section Officers, as so declared by various superior Courts of this coun try. Reliance has been placed by the learned counsel for the appellant, in support of his arguments on 1982 S C M R 408, 1983 P L C (C S T) 247, e980 P L C (CST) 134, 194 and 319. Arguing his case further the learned counsel for the appellants has submitted that senior group of the respondents, which is respondents Nos. 3 to 13, would not be promotees on regular basis as their promotion has not been effected through pres cribed manner as laid down in section 2(2) of the Punjab Civil Servants Act, 1974. According to the learned counsel for the appellants, even the Governor's plenary powers in declaring ad hoe promotion as regular from notional dates, cannot wipe out this inherent defect in their promo tions, particularly another glaring fact stares at their face inasmuch as they were superseded at the time when the case of the appellants and these respondents, was taken by Departmental Promotion Committee and placed before the Competent Authority in the year 1975. Learned counsel for the appellant has gone one step further by submitting that even if it was assumed that the respondents promotion was regular, but their non‑participation in the Section Officers Departmental Promotion Examination held on 22nd,, 23rd May, 1974.resulted in their super session, in term of rule 4(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Reliance has been placed on 1980 SCMR 11 and 1982 SCMR888.
10. it was emphasized by the learned counsel for the appellants that when the respondents Nos. 3 to 13, lost their seniority, by virtue of super session and non‑appearance and failure in the examination, a pre requisite for their promotion, but other respondents being admittedly junior to these respondents as well as promoted /recruited later than the date on which the appellants stood promoted on regular basis, would definitely be liable to be declared junior to them.
11. On the other hand learned counsel for the respondent No. 8, Mr. D. M. Awan, Advocate and Mr. M. Rashid Malik, Advocate, for res pondent No. 7, have come out with a preliminary objection that the appeals would be time‑barred for the following reasons :‑
(1) That the first list of seniority was notified on 12th November, 1980 and the same has not been challenged.
(2) That the order of 1975 by which the promotion of the appellants were made on temporary basis, has not been challenged, there fore, they may be considered temporary in the sense of ad hoc, for all times to come.
(3) As the notification, dated 23rd October, 1979 has also not been challenged by the appellants the same still holds the field and it was too late to challenge the same through these appeals by the appellants.
(4) Learned counsel came out with an objection which according to them, was fatal against the appellants, as virtually this was a matter of determination of fitness or otherwise for promotion of the appellants as well as of the respondents, therefore, this Tribunal has jurisdiction under section 4 (1)(b), to look into this aspect of the case.
12. With regard to the merits of the case, they have vehemently contested and challenged the assertion made by the learned counsel for the appellants and have submitted that even if the appellants were promoted in a prescribed manner and the respondents were not, this in no way would detract the notification issued by the Governor, as the said authority has vast powers to do and undo things in any manner, he likes.
13. It was further argued on behalf of the respondents counsel that the sole criteria to gain the status on regular basis for a promotee, would be that there should be the posts available against the vacancy to which he is promoted. According to the learned counsel, if it was proved from the record, that the appellants were promoted on regular basis against the vacancies so available, in promotion quota, he would be willing to concede their case, as according to him this criteria was sine qua non for promotion on regular basis.
14. We have given our anxious thought to the arguments so advanced before us and in order to find whether there was any force or strength in the arguments of the learned counsel for the appellant that promotion in a prescribed manner, could only confer the status of being regular or not. For this, we will first of all advert to section 2 (1) (a) and section 2 (2) of the Punjab Civil Servants Act, 1974, which defines ad hoc appointment and regular appointment, respectively as under :‑
" 2 (1)(a) 'ad hoc appointment' means appointment of a duly quali fied person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method ;"
2(2) For the purpose of this Act, an appointment whether by promo tion or otherwise, shall be deemed to have been made on regular basis if it is made in the prescribed manner."
It is also beneficial to quote section 4 of this Act, which is as under :‑
`4. Appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf."
Section 2(1) (g) of the said Act, further defines "prescribed" means prescribed by rules. As section 2 (1) (g) mentions certain Rules by making a mention of `prescribed manner, we would like to reproduce the relevant rules which according to our judgment, would be rule 5 which runs as under :‑‑
"5. Method of recruitment‑(1) Recruitment to the service, shall be made as follows
(a) 50% of the vacancies shall be filled by initial recruitment .........
(b) The remaining 50% of the vacancies shall be filled by selection on merit with due regard to seniority from among the Superin tendents of the West Pakistan Secretariat (Ministerial) Service, or if no such Superintendents are considered suitable for appoint ment to the service, from amongst the Assistants of the West Pakistan Secretariat (Ministerial) Service."
This Rule was further amended and substituted on 16th July, 1973 which is given below :‑
'(b) the remaining fifty per cent of the vacancies shall be filled by promotion in the following manner :‑
(i) five‑seventh of the vacancies by selection on merit with due regard to seniority from among the members of the Provincial Secre tariate (Ministerial) Service holding the posts of Superintendents or, if no such Superintendents are considered suitable for appoint ment to the service, then from amongst the members of the Pro vincial Secretariat (Ministerial) Service holding the posts of Assistants with at least twelve years' service as such provided that the said Superintendent/Assistants have passed the Departmental (Promotion) Examination prescribed by the Government for the purpose' and
(ii) two‑seventh of tide vacancies by selection on merit with due regard ,to seniority from among the private Secretaries of the Punjab 'Secretariat or, i f no such Private Secretary is considered suitable for appointment to the Service, then from amongst the Senior Scale Stenographers of the Punjab Secretariat with at least ,twelve years' service as such : provided that the said Private Secretaries/ Senior Scale Stenographers have passed the Depart mental (Promotion) Examination prescribed by the Government for the purpose."
The crux of these Rules as given above, would be that the appellants and respondents in this case, could only be promoted, in the manner, so provided by such Rules. These Rules make it crystal clear that a person to be promoted from the class of the appellants as well as respondents (promotees), first of all, have to possess two prerequisite qualification ; i. e. 12 years experience in service and passing of Departmental (Promotion) Examination. In the light of these rules and section 2, so quoted above, we have to see, whether the appellants and the respondents did fulfil the conditions precedent, before they could be conferred the status of promotees, on regular basis. In view of the history of this case, supported by un rebutted documents on the record, we have no hesitation to hold that the appellants did fulfil the pre requisite qualification for promotion on regular basis, and were so promoted on the recommendations of the Departmental Promotion Committee duly approved by the Chief Minister, vice versa the facts stand established that the promotees‑respondents,‑ did fulfil the conditions of 12 years' service in the line, as well as they were duly recommended by the Departmental Promotion Committee, but they failed to fulfil the condition of passing of Departmental (Promotion) Examination. If the legislature, in its wisdom, would have used the word `OR' for fulfilment of these three conditions, we would have certainly cleared the case of the respondents, by holding that they did fulfil one of the conditions so laid down in this behalf. What we face in this case is, that the Rules do not give this concession and demand that a person who has been promoted on regular basis, must have experience of 12 years' service, be recommended by the Departmental Promotion Committee and also passed the Section Officers Departmental (Promotion) Examination, therefore, we are of the firm view that the passing of the Departmental (Promotion) Examination, was a prerequisite for the respondents as well as for the appellants to claim promotion, on regular basis. At this juncture we would advert to the argument of the learned counsel for the respondents, in which it was submitted that in fact the Rules regarding the passing of Departmental Promotion Examination, was relaxed by the Government, vide their letter or Additional Chief Secretary, Government of the Punjab, dated 5th October, 1975, therefore, the impact of this clause, would not be of any avail to them. We have seen the letter on which reliance has been placed by the learned counsel for the respondents and find that the letter was issued on 5th October, 1975: Since the examination had been held and the result had been declared, therefore, it would have no retrospective effect on the matter, which stood past and closed. We are further persuaded to repel this argument on behalf of the respondents, when we further find that the said Committee duly considered respondents Nos. 3 to 13 alongwith the appellants, on 27th January, 1975, much before the issuance of this letter and the respondents stood superseded, by virtue of that event. We further find that the impact of this letter stood clarified by subsequent letter of Government, dated 16th February, 1976, in which, it was observed that the aforesaid relaxation, did not apply to the examina tion, which had teen prescribed in the Service Rules. Moreover, it would pot lx out of place to 1ention that the relaxation is only made in individual case of hardship and not…
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