Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD AKRAM VS Respondent: CHAIRMAN, LAHORE DEVELOPMENT AUTHORITY, LAHORE,Mushtaq Masud & Rana Muhammad Khan
1993 P L C (C
1993 P L C (C.S.) 702
[Lahore High Court]
Before Irshad Hasan Khan, J
Mian MUHAMMAD AKRAM
versus
THE CHAIRMAN, LAHORE DEVELOPMENT AUTHORITY, LAHORE and 2 others
Writ Petitions Nos. 2880‑S of 1991 and 7050 of 1990, decided on 26th January, 1993.
(a) Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978‑‑‑
‑‑‑‑Reglns. 11(i), 22, 24, 14 & 2(f)(k)‑‑‑Absorption of deputationists in the service of Authority from the date of joining the authority on deputation‑‑ Government was to formulate policy regarding eligibility and appointments of persons holding requisite qualification and experience in the service of the Authority on deputation in accordance with the policy prescribed by it‑‑‑Term "prescribed" as defined in Regln. 2(k) meant prescribed by Regulations but no Regulation had been framed for recruitment of deputationists, therefore, in the absence of any Regulation, it was within the competence of the Chairman to formally approve the principle that all the deputationists should be absorbed in the Authority with effect from their respective dates of joining the authority on deputation‑‑‑Once the policy decision was duly approved the benefits accruing there under automatically extended to the petitioners and nothing else was required to be done‑‑‑Principle of animus revertendi or locus poenitentiae ‑‑ Applicability‑‑‑Any fresh decision by the competent Authority on the subject would not affect the acts done or ought to have been done on the basis of previous policy decision having the force of law‑‑‑Chairman was also competent to determine the seniority of deputationists and having done so, employee had a vested right to demand benefits of the same which could not be denied to him.
It is for the Government to formulate policy regarding eligibility and appointment of persons holding requisite qualification and experience in the service of the Lahore Development Authority on deputation in accordance with the policy prescribed by it. The term `prescribed' as defined in Regulation 2(k) means prescribed by Regulation. Here no Regulation was framed for recruitment of deputationists. Therefore, in the absence of any Regulation, it was within the competence of the Chairman to formally approve the principle that all the deputationists should be absorbed in the Authority with effect from their respective dates of joining the Authority on deputation. A specific direction was given in this behalf by the then Chairman/Chef Minister vide order dated 12‑2‑1990, which was intra vices. The Regulation No.11 does not provide that the policy prescribed by the Government for recruitment of deputationists is to be made in any particular manner nor does it require previous publication of the policy in the official Gazette. That being so, the Chairman's order dated 12‑2‑1990 prescribing the special method for the recruitment of deputationists from the date of their joining Lahore Development Authority was as operative as the Regulation itself made on 12‑2‑1990 by the Chairman's aforesaid order. The Regulation 2(f) should be deemed to have been modified so far as recruitment of deputationists was concerned. In other words, the order dated 12‑2‑1990 of the Chairman regarding deputationists amounted to special rule of recruitment governing the deputationists alone.
Once the policy decision dated 12‑2‑1990 was duly approved, the benefits accruing there under automatically extended to the petitioner and nothing else was required to be done. There was, therefore, no force in the submissions that the principle of animus revertendi or locus poenitentiae was not applicable here.
In so far as the present case was concerned, the Chairman being the competent authority having validly laid down the policy for recruitment of deputationists vide order dated 12‑2‑1990, effect should have been given to it by the Director‑General to the case of the petitioner. No animus revertendi or locus poenitentiae was available to the Authority to recall the benefits accruing there under. The new policy decision would not affect the acts done or ought to have been done on the basis of the previous policy decision having the force of law.
The new policy was intended to regulate the employment of the deputationists in future and not the one who had already been taken in the service of the Authority on deputation.
The new decision taken by the present Chairman/Chief Minister Punjab, related to a policy decision for the future and would‑ not govern the past and closed transactions. Clearly a decision adversely affecting the rights of the employee relating to his seniority could not be given retrospective effect and to that extent the decision was without lawful authority. Thus, visualised, the Chairman's decision dated 12‑2‑1990 prescribing the method of recruitment of deputationists was legally operative and was an order having the statutory force and the policy decision subsequently taken by the Chairman that fixation of the seniority of all the deputationists officers should be considered from the date of their absorption in the Authority would be effective from the date the decision was taken.
Regulation No. 8 regulates the seniority inter se of employees appointed to post in the same grade, and there is no specific provision in the Regulation for determining the seniority of the deputationists. Here this was expressly done by a policy decision taken by the Chairman/Chief Minister, Punjab, on 12‑2‑1990. Thus, the Chairman was competent to do so under Regulation 11 backed by Regulation No. 24 and having done so, the employee has a vested right to demand benefit of the same which could not be denied to him.
The new policy decision/order dated 16‑2‑1991 taken by the Chairman, Lahore Development Authority that the seniority of all the deputationists officers should be considered from the date of their absorption in the Authority was not applicable to the case of the deputationists affected by the previous decision of the Chairman. The order dated 14‑3‑1991 passed by the Chairman of the Authority that the policy decision dated 16‑2‑1991 should have retrospective effect was declared as without lawful authority and of no legal effect. Consequently the letter of LDA/ADMN/1359, dated 27‑3‑1991 in so far as it adversely affected the previous deputationists was declared as without lawful authority and of no legal effect. A right had accrued to the deputationists to have his seniority determined on the basis of the order/policy decision of the Chairman, Lahore Development Authority, Lahore, dated 12‑2‑1990 to which effect was to be given forthwith.
Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary Food and Agriculture, Civil Secretariat, Lahore and another PLD 1971 SC 846; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Raja Muhammad Nawaz v. Government of the Punjab 1981 SCMR 523, Shahbaz v. The Crown PLD 1955 F.C. 46; Lt.‑Col. G.L. Battacharya v. The State PLD 1964 SC 503; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; The State v. Muhammad Ismail 1980 SCMR 268 and Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan PLD 1990 SC 1013 ref.
(b) Interpretation of statutes‑‑‑
‑‑‑‑ Rules cannot be given retrospective effect.
D.M. Awan for Petitioner.
Ahmer Bilal Soot with A.R. Arshad Malik, Legal Advisor, LDA for Respondents Nos. 1, 2, 6, 7, 12,13,15 and 16.
Farooq Bedar, Addl. A.‑G. for Respondent No. 3.
Respondents Nos. 4 and 5 in person.
Mushtaq Masud for Respondent No. 8.
Rana Muhammad Khan for Respondents Nos. 9, 10, 11 and 14.
Date of hearing: 20th January, 1993
JUDGMENT
This judgment shall dispose of Writ Petition No.7050 of 1990 and Writ Petition No.2880 of 1991 involving identical controversy.
2. The facts, in brief, are that Mian Muhammad Akram, Assistant Director (Mechanical), Lahore Development Authority (hereinafter called the Authority) filed Writ Petition No.7050 of 1990 under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 on 27‑9‑1990 praying therein that the Director‑General of the Authority be directed to act upon the order dated 12‑2‑1990 of the Chief Minister, Punjab/Chairman of the Authority whereby a decision was taken on the representation of the petitioner that all the officers joining the Authority on deputation be absorbed with effect from their respective date of joining the Authority. A direction was also sought for placing the petitioner on the seniority list of the cadre of Assistant Directors acknowledging the date of his permanent absorption as 15‑4‑1977 when he joined the Authority.
3. By order dated 29‑10‑1990 report was called for from the Authority wherein it was stated that the order of the Chairman dated 12‑2‑1W0 was not acted upon, in‑that, review has been sought against it and the decision was still awaited. Prior do filing of Writ Petition No.7050 of 1990, Mr. Gul Rukh Mian, Director of the Authority (not party to these proceedings) also made a representation to the Chairman for fixation of his seniority from the date of his joining Authority on deputation. His claim was based on the precedent cases of Mr. Ahmad Ghazali, Deputy Director and Mr. Muhammad Khan, Assistant Director of the Authority whose seniority was fixed from the date of their joining the Authority by the competent Authority, that is to say, the Chairman. While considering this representation on the summary submitted by the Authority, a policy decision was taken by the Chairman/Chief Minister that fixation of the seniority of the deputationists officers should be considered from the date of their absorption in the Authority and not the date of their joining. This decision was duly communicated to the Director‑General of the Authority vide Summary bearing No. LDA(PS‑DA)/199, dated 23‑1‑1991. The Director General of the Authority resubmitted the summary to the Chairman to clarify whether the policy shall have retrospective effect. The Chairman/Chief Minister directed that this policy decision will have retrospective effect. In consequence, the Director‑General, Authority, vide Office Order bearing No. LDA/ADMN/1359, dated 27‑3‑1991 reviewed the seniority of the deputationists accordingly wherein it was inter alia stated:‑
"The period between their dates of joining LDA and absorption shall be treated as service on deputation with LDA and these Officers shall be treated as employees of their respective parent Departments upto their actual dates of absorption for the purpose of service, pension and other benefits.
All individual orders on the subject as well as the existing seniority lists shall be deemed to have been modified to the extent indicated above. The revised seniority lists in the light of the above be issued in due course."
4. In the said office order, the date of joining the Authority on deputation by the petitioner as Assistant Director (Engineering) was shown as 15‑4‑1977 while date on which the absorption was actually approved was as 15‑4-1984. In this view of the matter, the petitioner filed Writ Petition No.2880/S of 1991 stating therein that the order dated 12‑2‑1970 passed by the Chairman thereby placing him on the seniority list of the cadre of Assistant Directors acknowledging the date of his permanent absorption as 15‑4‑1977 was not open to alteration when the matter was sub judice before this Court in W.P. No.7050 of 1990 and that the Director‑General, Authority, ought to have brought this matter to the notice of the Chairman of the Authority which was admittedly not done. During the pendency of W.P. No. 2580‑S of l991, it was also transpired that some private respondents would be adversely affected if petitioner's writ petition succeeds, therefore, respondents Nos.1 and 3 to 16 were impleaded as respondents vide order dated 27‑5‑1992 passed in C.M. No. 3 of 1992.
5. During the course of arguments, Mr. D.M. Awan, learned counsel for the petitioner made an oral petition for withdrawing W.P. No. 7050 of 19990 which was allowed. Needless to point out that the second petition was tiled ‑on 11‑4‑1991 because new cause of action has accrued to the petitioner as a result of an independent order passed by the Director‑General of the Authority vide Letter bearing No. LDA/ADMN/1359, dated 27‑3‑1'X71 discussed above.
6. The grievance of the petitioner is that he having been granted absorption in the Authority as Assistant Director from the date of his joining the Authority, that is to say, 15‑4‑1977, under the lawful orders of Mr. Muhammad Nawaz Sharif, the then Chief Minister, 'Punjab/Chairman, Authority, the same was not open to review by his successor, namely Mr. Ghulam Haider Wyne, vide policy decision dated 16‑2‑1991 without notice to the petitioner, in that, on the basis of the previous decision, he had acquired the status of a regular employee of the Authority. It was also urged that ever since the petitioner joined the Authority, he practically severed all his connection with his parent department. Mr. Farooq Bedar, the learned Additional Advocate‑General appearing on behalf of respondent No.3, submitted that vide letter dated 8‑4‑1977, the Communication and Works Department was requested by the Authority that the services of the petitioner be placed at its disposal on deputation and ever since he joined the Authority for all practical purposes, he severed his connections with his parent department. It is also an admitted fact that prior to the expiry of his deputation period of three years, the petitioner submitted an application in December, 1979 for his permanent absorption in the Authority.
7. The case of the respondents is that the summary approved by the then Chairman was referred back by the then, Director‑General/Authority, for reconsideration of his successor's decision, whereupon comments were called for from the new Director‑General of the Authority and the Secretary, Regulations. Both of them opined that if effect is given to the decision taken by the former Chairman, it would adversely affect the interest of regular employees. Eventually, a decision was taken by the Chairman/Chief Minister, Punjab, on 16‑2‑1991 on a summary submitted to him in the case of Mr. Gul Rukh Mian that fixation of seniority of all the deputationists officers should be considered from the date of their absorption in L.D.A. It was further argued that the decision earlier taken by the previous Chairman in the case of the petitioner was never acted upon and; therefore, the plea of locus poenitentiae is not available to him.
8. Learned counsel for the respondents also argued that under Regulation 2(t) of the Lahore Development Authority (Appointments and Conditions of Service) Regulations, 1978 (hereinafter called the Regulations), the term `employee' has been defined to mean an employee of the Authority but does not include;
(i) a person on deputation to the Authority from the Government or the Government of Pakistan or an autonomous or semi‑autonomous organization, and
(ii) a person who is employed on contract, or on work‑charged basis or who is paid from contingencies;
On the basis of the aforesaid provisions, it was argued that deputationists cannot be treated as regular employees from the, date of their joining service.
9. Mr. Ahmar Bilal Sufi, Advocate, also relied on Municipal Committee, Bannu v. Munawar Khan, Advocate (PLD 1982 Peshawar 61), to contend that the order passed by the previous Chairman/Chief Minister, Punjab, regarding petitioner's absorption formed part of the official record, which was never conveyed to him, therefore, reliance on such information cannot be considered. When faced with this, Mr. D.M. Awan, learned counsel for the petitioner, respectfully submitted that Mr. Manzoor Ahmad Malik, the then Director General of the Authority, gave a categoric assurance to the petitioner that the order dated 12‑2‑1990 passed by the then Chairman/Chief Minister, Punjab, would be implemented, but later failed to comply with the same on one pretext or the other and, therefore, the petitioner was within his right to approach this Court for redress of his grievance. In support of his plea, reference was made to the averments made in paragraphs 15 and 16 of the writ petition and parawise comments filed by the respondents, which may be reproduced for ready reference:‑‑
PARAGRAPHS 15 AND 16 OF THE WRIT PETITION
"15. On 30‑8‑1989, the Director‑General, Lahore Development Authority submitted summary for the Chief Minister. In paragraph 4 of the summary it was specifically observed by the Director‑General Lahore Development Authority that keeping in view his excellent performance in Lahore Development Authority his absorption with effect from 15‑4‑1977 was recommended in the best interest of the Authority.
In paragraph 3 it .was stated that Messrs Ahmad Ghazali, Muhammad Rafiq, Deputy Directors and Muhammad Khan, Assistant Director were absorbed in Lahore Development Authority with effect froth their dates of joining Lahore Development Authority on deputation. It was further stated that Mr. Muhammad Anwar Akhtar, Deputy Director joined L.I.T. on deputation on 1‑2‑1967 as S.D.O. and was absorbed on 10‑3‑1970 after the expiry of his deputation period.
On 12‑2‑1990, the Chief Minister exercising powers 7as Chairman, Lahore Development Authority was pleased to pass the following order:‑
"I feel that the discrimination between the Officers joining L.D.A. on deputation should be removed. All of them may be absorbed with effect from their respective dates of joining L.DA. on deputation.
L.DA. should determine a well‑defined criterion for taking personnel from other Departments on deputation in future."
16, The petitioner' having learnt about order of the Chief Minister dated 12‑2‑1990, sought interview with the Director‑General, Lahore Development Authority and met him in his office. He assured the petitioner that the order of the Chief Minister dated 12‑2‑1990 would be strictly complied with and implemented and his placement in the seniority list would be rectified by giving him the seniority in the cadre of Assistant Director with effect from 15‑4‑1977. Mr. Manzoor Ahmad Malik was then the Director‑General, Lahore Development Authority.
But strangely enough, the order of the Chief Minister dated 12‑2‑1990 has not so far been implemented. Mr. Qamar‑uz‑Zaman, the new Director‑General, Lahore Development Authority took over the charge on 1‑3‑1990. Despite repeated requests made by the petitioner, the order of the Chief Minister, Punjab/Chairman, Lahore Development Authority dated 12‑2‑1990 has not been implemented and the petitioner's position in the cadre of Assistant Director has not been rectified by granting him seniority in the seniority list from the date of joining Lahore Development Authority i.e. from 15‑4‑1977."
COMMENTS ON PARAGRAPHS 15 AND 16 ON BEHALF OF THE AUTHORITY
15 & 16. Admitted to the extent of the Summary submitted to the Chairman LDA/Chief Minister, Punjab on 31‑8‑1989 and the Chief Minister's observations for absorption of the deputationists officers from their respective dates of joining LDA on deputation. Since the Chief Minister's observations were not in accordance with the Regulation 2(f)(i) of the LDA Service Regulations, 1978 and also because in a similar case where absorption of a deputationists officer from the date of joining LDA ordered by the Chief Minister, Punjab was assailed by some other officers in that category, the Chairman LDA/Chief Minister, Punjab was requested to review his decision regarding grant of back‑date seniority to the deputationists officers. This summary was sent to the Chairman, LDA/Chief Minister, Punjab by the former Director‑General LDA Brig. (Retd) Manzoor Malik. The Chief Minister, Punjab returned the Summary with following remarks:‑‑
"Chief Minister has seen and desired the new Director‑General, LDA to study the case and offer his views.
It was due to the above orders of the Chairman, LDA/Chief Minister, Punjab, that the new Director‑General, LDA (Mr. Qaniar‑uz‑Zaman) resubmitted the Summary to‑ the Chairman, LDA/Chief Minister, Punjab on 12‑6‑1990. Since the summary had been resubmitted to the Chairman, LDA/Chief Minister, Punjab, the question for implementation of the Chief Minister's observations dated 12‑2‑1990 does not arise (It appears the underlining was omitted due to omission)."
10. A bare perusal of the aforesaid paragraphs of the writ petition and the comments filed by the Authority would show that the petitioner specifically stated in paragraph 16 of the writ petition that he sought interview with the Director‑General who assured him to comply with the order of the Chairman/Chief Minister dated 12‑2‑1990 and rectify the seniority list accordingly. This has not been controverted in the written statement. I am, therefore, inclined to agree with Mr. D.M. Awan, learned counsel for the petitioner, that the ratio laid down in the case ~f Municipal Committee, Bannu (supra) is not attracted here.
11. The record placed before the Court does not show that the order made in favour of the petitioner ‑by the previous Chairman was brought to the notice of the present Chairman while submitting the summary in the case of Mr. Gul Rukh Mian (supra).
12. The controversy raised herein needs examination in the light of various provisions of the Regulations. Regulation 11(i) provides that a person in the service of the Government or an autonomous or semi‑autonomous organization who possesses the minimum educational qualifications, experience or length of service prescribed for a post shall be eligible for appointment to the said post on deputation, in accordance with the policy prescribed by Government.
13. Regulation 22 is to the following effect:‑
"22. Subject to the provisions of the Act, these Regulations and the Schedule, the following rules, shall apply mutatis to the employees of the Authority:‑‑
(i) The West Pakistan Government Servants (Conduct) Rules, 1966.
(ii) The Punjab Civil Servants (Efficiency and Discipline) Rules, 1975.
(iii) The West Pakistan Civil Services Pension Rules, 1963, read with the Lahore Improvement Trust (Pension) Rules, 1968.
(iv) The Punjab Civil Servants Leave Rules, 1955.
(v) The Punjab Civil Services Rules.
(vi) The Punjab Travelling Allowances Rules, 1975.
(vii) The Punjab Financial Rules.
(viii) The Punjab Civil Servants Pay Revision Rules, 1977
Provided that‑‑
(a) any reference to a Government Servant or Civil Servant shall be construed to be a reference to an employee of the Authority;
(b)any reference to the Head of Department shall be construed to be a reference to the Director‑General in the case of the Authority and to the Managing Director in the case of an Agency;
(c) any reference to a Secretary to Government shall be construed to be a reference to the Director‑General in the case of both the Authority and its Agencies;
(d) any reference to the Government shall be construed to be a reference to the Chairman;
(e) the Chairman, the Director‑General and a Managing Director may, by general or special order, delegate to any officer or officers of the Authority, any of these powers under these rules subject, where necessary, to such conditions as may be specified:'
14. Regulation 24 empowers the Chairman in individual cases of hardship or when public interest so requires and for reasons to be recorded in writing, relax the provision of any of the regulations except Regulation No.14 which provides that no person shall be appointed to a post unless he is a citizen of Pakistan, provided that this restriction may be relaxed by Government in suitable cases.
15. A perusal of the aforesaid Regulations would show that it is for the I Government to formulate policy regarding eligibility and appointment of persons holding requisite qualification and experience in the service of the Authority on deputation in accordance with the policy prescribed by it. The term `prescribed' as defined in Regulation 2(k) means prescribed by Regulation. Here no Regulation was framed for recruitment of deputationists. Therefore, in the absence of any Regulation, it was within the competence of .the Chairman to formally approve the principle that all the deputationists should be absorbed in the Authority with effect from their respective dates of joining the Authority on deputation. A specific direction was given in this behalf by the then Chairman/Chief Minister vide order dated 12‑2‑1990, which was intra Vires. The Regulation No.11 does not provide that the policy prescribed by the Government for recruitment of deputationists is to be made in any particular manner nor does it require previous publication of the policy in the official Gazette. That being so, the Chairman's order dated 12‑2‑1990 prescribing the special method for the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.