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Petitioner: Malik JAHANGIR KHAN VS Respondent: PUNJAB GOVERNMENT
1980 P L C (C
1980 P L C (C. S.) 33
[Service Tribunal Punjab]
Present : M. Saleem Chaudhry, Chairman and S. Hafeezur Rahman, Member
Malik JAHANGIR KHAN AND OTHERS
Versus
PUNJAB GOVERNMENT AND OTHERS
Appeal No. 117/942 of 1977, decided on 27th October, 1979.
(a) Punjab Service Tribunals Act (IX of 1974)‑----
‑‑ Ss. 4 & 8 read with Punjab Civil Services (Appellate Tribunals) Ordinance (1V of 1970), Ss. 4 & 12(4)‑Decision of Appellate Tribunal challenged in writ petition before High Court‑Writ Petition abated vide S. 8 of Punjab Service Tribunals Act, 1974‑No appeal filed under S. 8 of Punjab Service Tribunals Act, 1974 after such abatement‑Findings of Appellate Tribunal, in circumstances, held, became final‑Departmental authority in pursuance of such decision of Appellate Tribunal passing order‑Same controversy, held, cannot be re‑agitated before Service Tribunal under S. 4 of Punjab Service Tribunals Act, 1974‑Matter being same between same parties, further held, barred by principles of res judicata.
Jaffar Hussain v. Punjab Civil Services (Appellate) Tribunal, Lahore and others 1978 N L R 144; P L D 1978 Lah. 738 and P L D 1970 S C 146(1) rel,
P L D 1974 Lah. 545 and P L J 1979 Lah. 272 ref.
(b) Nest Pakistan Civil Service (Executive Branch) Rules, 1964‑--
----R. 10(b) and Constitution of Pakistan (1962), Arts. 178 & 234--- Seniority of Lawyer Magistrates after absorption into P. C. S. Governor authorised to assign suitable seniority from any date earlier than date of absorption‑Principle of retrospectivity does not affect assigning such seniority by Governor‑Assignment of seniority from any date earlier than absorption‑Does not amount to enforcing rule from retrospective effect‑Seniority‑Not one of terms and conditions of service protected by Arts. 178 & 234 of Constitution of 1962‑Assignment of seniority to Lawyer Magistrates after absorption from a date earlier than 1962 Constitution, held, not barred.
1972 P L C (C. S. T.) 64 upheld,
PLD 1970 SC 146(1);PLD 1976 SC 99;PLD 1970 S C 279 and P L D 1974 Lah. 193 rel.
1977 S C M R 365 distinguished.
(c) Civil service‑
‑‑‑ Seniority‑Creation of post in matters of fixation of seniority with restrospective effect‑Not an indispensible requirement‑Necessity to create supernumerary post arises only when salary is to be paid.
(d) Civil service‑--
‑‑‑ Absorption in service‑More akin to integration/merger as compared to appointment to service‑Seniority in matters of absorption To be decided on principles of integration and merger, i.e. on basis of continuous officiation in grade‑Principle further gaining statutory backing by Punjab Civil Servants Change in Nomenclature of Services and Abolition of Classes) Rules, 1974‑Assignment of seniority to Lawyer Magistrates after absorption into P. C. S. with reference to dates of initial appointment as Lawyer Magistrate, held, not assail Pakistan Civil Service (Executive Branch) Rules, 1964, r. 10(b).
1972 P L C (C. S. T.) 64 upheld.
(e) West Pakistan Civil Service (Executive Branch) Rules, 1964‑---
‑‑ Rr. 8 & 13‑Requirements of passing departmental examination Relaxed by competent authority in favour of Lawyer Magistrates absorbed in P. C. S.‑Such order not challenged independently‑ Held : Cannot be challenged in appeal against fixation of seniority of Lawyer Magistrates subsequently‑Relaxation granted by competent authority, held further, involved no contravention of Ss. 5 & 13 of Punjab Civil Servants Act, 1974‑Punjab Civil Servants Act (VIII of 1974), Ss. 5 & 23.
(f) Punjab Civil Servants Act (VIII of 1974)
‑‑ S. 22, proviso read with West Pakistan‑ Civil Service (Executive Branch) Rules, 1964, r. 10(b)‑‑Order of Governor assigning seniority to Lawyer Magistrates absorbed in P. C. S. challenged‑Contention that in view of protection under S. 22 of Punjab Civil Servants Act, 1974 Governor's powers limited to pass order to detriment of existing members of P. C. S.‑Proviso below S. 22, held, applies to case of a civil servant whose case is dealt with under main clause of S. 22 ‑Protection in proviso available to only Lawyer Magistrates whose case being decided and to none else.
(g) Punjab Service Tribunals Act (IX of 1974)‑--
-----S. 4 read with Punjab Civil Servants Act (VIII of 1974), S. 21 ---Limitation‑To commence from date of knowledge of impugned order‑Notification impugned dated 24‑12‑1976‑Representation or appeal not contemplated under S. 21 of Punjab Civil Servants Act, 1974 Representation filed on 3‑2‑1977, in circumstances, held, could not be availed for extending limitation.
P L D 1969 S C 583 rel.
JUDGMENT
M. SALEEM CHAUDHRY (CHAIRMAN).‑In this case the appellants who were the member of the Provincial Civil Service (Executive Branch), assail the order of the Government of Punjab, dated 24‑12‑1976 absorbing the respon dents as Lawyer Magistrates in the P. C. S. Service with effect from their respective dates of appointments.
2. The background of the case is that 30 Lawyer Magistrates were recruited through the former Punjab Public Service Commission in 1954 and another ten in 19.59 through the West Pakistan Public Service, against the permanent posts created by the Government of Punjab and West Pakistan, respectively. The recruitments above were intended to clear the arrears of criminal cases which had accumulated in the Province. The appointees were primarily to form Judicial Wing of the Magistracy, as at the relevant time, the separation of the Judiciary from the Executive was envisaged.
3. In 1959, the Lawyer Magistrates inter alia demanded their absorption in the P. C. S. service from the dates of their' appointments and also demanded that they may be declared eligible for promotion to the listed posts meant for P. C. S. officers. Initially, it appears that the demand was not accepted by the Government. However, subsequently, on 27‑6‑1961, the Governor's Advisory Council of West Pakistan, decided as under :‑
"that Lawyer Magistrates may be absorbed in the P. C. S. (E. B.) cadre from the date they were appointed. However, they may he placed below the P. C. S. officers selected in the same year."
4. The above decision was, however, subject to the condition of the satisfactory record, passing of the Departmental Examination and completion of the Revenue training by the Lawyer Magistrates. The records of the Lawyer Magistrates were to be examined by a Selection Board comprising Member, Board of Revenue, Additional Chief Secretary and the Revenue Secretary. It was further desired that the above decision may be given effect through a Presidential Order. In this regard, a reference appears to have been made to the Central Government, but the Central Government advised the Provincial Government (advice received by the Provincial Government on 4‑6‑1962) that under clause of Article 6 of the Laws (Continuance in Fore) Order, 1958, the Provincial Government itself was competent to take the decision about the merger. However, the Laws (Continuance in Force) Order, 1958, 'was repealed on 8‑6‑1962 when the Constitution of Pakistan (1962) came into force. In the changed context, the advice of the Law Department was obtained who advised that the merger could take place only after at‑rending the Punjab Civil Service (Executive Branch) Rules, 1930, which did not contain any provision as to the absorption of the Lawyer Magistrates. Again Oil 8‑11‑1962, the case was placed before the Council of Ministers who reiterated the decision of 1961 that the Lawyer Magistrates be absorbed from the dates of their appointments. The matter once again carte up for consideration before the Council of Ministers on the 18th of November, 1963 when it was directed to scrutinize the cases of each Lawyer Magistrate by a Board referred to above to consider their fitness for absorption in the P. C‑ S. (E. B.) Cadre, with effect from the dates they were appointed as Lawyer Magistrates.
5. The Board considered the cases of all the Lawyer Magistrates working in West Pakistan and appears to have recommended the absorption of all the Respondent Lawyer Magistrates in P. C. S. Service. The West Pakistan, Public Service Commission also agreed to the recommendations.
6. On 10‑12‑1964, new Rules known as the West Pakistan P. C. S. (Executive Branch) Rules, were notified. With a view to provide instru mentality for giving effect to the decision aforesaid, rule 10 was included in the P. C. S. Rules, 1964, which reads as under:‑.
"10. Absorption of Lawyer Magistrates etc.‑Notwithstanding anything elsewhere contained in these rules, but subject to the provision of rule 8, the Governor of West Pakistan, may‑
(a) absorb in the Service in such manner as lie may determine such persons, as at the time of the coming into force of these rules, are holding the posts of Additional City Magistrates and Deputy Collectors in Karachi and Lawyer Magistrates elsewhere in the Province, and whom lie considers suitable for such absorption ; and
(b) assign the persons so absorbed suitable seniority in the service, which shall not in any case be earlier than their respective dates of appointment as Additional City Magistrates, Deputy Collectors or Lawyer Magistrates, as the case may be:
Provided that the conditions as to Pay and Superannuation of such persons shall not be varied to their disadvantage."'
7. In exercise of the powers under rule 10 and in accordance with the recommendations of the Selection Board and the Public Service Commission, the Provincial Government vide Notification dated 26th October, 1966, absorbed seventy‑nine Lawyer Magistrates including Additional City Magis trates of Karachi, in the West Pakistan P. C. S. (E. B.) Service. The Notifica tion allowed them Pay at the minimum of the P. C. S. Scale plus one increment for every two years of their past service. The existing posts held by the Lawyer Magistrates were abolished with immediate effect and equal cumber of posts were added to the W. P. P. C. S. (I:. B.) Cadre. The rest of the terms and conditions of absorption in service including their inter se seniority and their seniority via‑a‑via other W. P. P. C. S. officers was left to be determined separately.
8. For the purpose of fixing the seniority of the Respondents Lawyer Magistrates vis‑a‑vis other P. C. 5. officers it was decided on 4‑5‑1970 to give them seniority w. e. f. 26‑10‑1966. The decision was based on the advice of the Law Department dated 24‑5‑1969 suggesting that the normal rule is that a person in .a service shall reckon his seniority from the date of his entry into the service. The West Pakistan, Public Service Commission on 8‑7‑1969, also appears to have concurred with the advice of the Law Department.
9. Being aggrieved by this decision, the Lawyer Magistrates went in appeal to the Punjab Civil Service (Appellate) Tribunal, who vide their judg ment dated 11‑5‑1971 quashed the order of the Government assigning seniority to the Lawyer Magistrates from 26‑10‑1966 holding that the same was not equitable or just. The Tribunal also observed that the advice of the Law Department left much to be desired. In the ultimate outcome the Tribunal suggested the following three alternatives for the consideration of the Department:‑
"Under this rule what has to be decided is what was a suitable date of absorption. Whether it should be the date of appointment, the date of integration or a subsequent date, bearing in mind all the circum stances and facts of the case?" [1972 P L C (C. S. T.) 64 (77)].
10. The present appellants being dissatisfied with the orders of the Punjab Civil Service (Appellate) Tribunal, questioned the same vide Writ Petition No. 751‑S of 1971, before Lahore High Court. During the pendency of the writ petition the Punjab Civil Administrative/Services Tribunal was established in pursuance to the provisions contained in Article 212 of the Constitution of Pakistan, 1973 vide Punjab Service Tribunals Act, 1974. Article 212 of the Constitution of Pakistan and section 8 of the Punjab Service Tribunals Act, provided for the abatement of the pending proceedings before Forum other than this Tribunal after the establishment of the Tribunals above.
In view of above, on 3‑2-1975, Mr. Justice Shafi‑ur‑Rehman, declared the writ petition to have abated. The appellant, if aggrieved, had remedy to file an appeal before this Tribunal under proviso to section 8 of the Punjab Service Tribunals Act, 1974, but no such appeal was ever filed.
11. In the meantime, the Department processed the seniority issue at their level in pursuance to the decision of the Punjab Civil Services (Appellate) Tribunal. It appears that the advice of the Punjab Law Department was again obtained who on 7‑6‑1973 advised as under : ‑
"10. The principle of retrospectivity, which has been discussed so very often in this file, does not affect assigning of suitable seniority to the Lawyer Magistrates. The rule is not being enforced from a retrospective date; only the rule 10(b) authorizes the Governor to assign suitable seniority from a date earlier than the actual date of absorption. This will not be the same thing as application of a rule retrospectively. 'This contention was taken up before the Services Appellate Tribunal and the Tribunal rejected it.
(11) In nutshell, seniority is not one of the terms and conditions of services which have been protected by the Constitution, and rule 10(b) therefore, is not ultra vires of the Constitution. Similarly, the assigning of seniority by the Governor to the Lawyer Magistrates from a date earlier than the 1962 Constitution is not barred."
12. In the light of above advice, a Working Paper for the guidance of the Departmental Committee's meeting held on 8‑1‑1976, was prepared on the following lines:‑
"The legal position has been examined in detail by the Law Department and Law Secretary has advised that the Governor was competent to assign any suitable date of seniority to Lawyer Magistrates from a date which is not prior to the date of their appointment as Lawyer Magistrates. The Law Department has further clarified that assigning of seniority by the Governor to the Lawyer Magistrates from tile date earlier than the 1962 Constitution is not barred. The former Chief Secretary (Mr. S. Afzal Aghn) observed as under:----
In view of services re‑organization and Administrative Reforms, question of seniority vis‑a‑vis P. C. S. (E. B.) would be irrelevant. These officers (Lawyer Magistrates) would now be placed in the appropriate grade and their seniority based on the date of continuous officiation in the service.
The Law Department has, however, clarified that the old rules will continue to apply in this case which means that seniority is to be fixed under rule 13 ibid. The legal position is thus very much clear and the decision about fixation of seniority of Lawyer Magistrates is required to be taken in discretion."
13. The Departmental Committee comprising Addl. Chief Secretary, Law Secretary, Finance Secretary and two Members held various meetings in which the representatives of W. P., P. C. S. and the Lawyer Magistrates, were heard at length.
14. To obviate the objection as to the requirements of rule 8 which override rule 10 of the W. P., P. C. S. (E. B.) Rules, 1964 the Competent Authority viz. the Chief Minister of Punjab on 6‑5‑1975 relaxed the same in favour of the Lawyer Magistrates.
15. The case was again placed before the Departmental Committee on 24‑7‑1976, who rafter taking into consideration the respective contentions raised by the parties, recommend‑.d as under:‑
"4. The Committee noted that a former Chief Secretary (Mr. S. Afzal Agha) had expressed the view that Lawyer Magistrates should be placed in the appropriate grade with reference to their date of conti nuous officiation in the service. The Punjab Civil Services (Appellate) Tribunal had also mentioned the same principle as a first alternative in its judgment i.e. the date of appointment to the service as Lawyer Magistrate. The Committee further observed that any one date could not be assigned to both the groups of the Lawyer Magistrates recruited in 1954 and 1959. Assignment of any arbitrary date would neither be equitable nor would lead to any satisfactory solution.
5. After detailed discussion and keeping in view the facts mentioned in the Working Paper the Committee unanimously recommended that Lawyer Magistrates should be given seniority according to the well established principle of continuous officiation in the grade, i.e. with effect from the date of appointment as Lawyer Magistrate subject to uninterrupted service."
16. In pursuance to the recommendations above, the matter was eventually put up before the Competent Authority for approval. On 21‑9‑1976, the Chef Minister, Punjab, as Competent Authority approved the recom mendations of the Committee according to which the seniority of the Lawyer Magistrates was to be fixed in accordance with the principle of continuous officiation in the grade, i.e. from the dates of their appointments as Lawyer Magistrates subject to inter se seniority of each batch and uninterrupted service. The Chief Minister, Punjab, also made a query as to the financial implication of the proposal, which was clarified on 5‑10‑1976 after due discussion. The impugned Notification/Order consequently was issued by the Provincial Government on 24‑12‑1976 grunting seniority‑ in the P. C. S. (E. B.) to the respondents from the date of their respective appointments as Lawyer Magistrates. Some of the P. C. S. officers viz. Messrs Bashir Ahmad, Irshad‑ul‑Hassan and Mr. Faisal Tahseen, represented on 3‑2‑1977 against the same, but the same failed to find favour with the Provincial Government. Ultimately, the present appeal was filed on 9‑6‑1977 before this Tribunal.
17. The learned counsel for the appellant Ch. Muhammad Farooq, raised the following contentions in support of this appeal before us:‑
(i) That the West Pakistan Civil Service (E. B.) Rules, 1964 were notified on the 10th of December, 1961. It was for the first time that rule 10 in the aforesaid rules empowered the Governor of West Pakistan to absorb the Lawyer Magistrates into West Pakistan Civil Service and to assign them suitable seniority in the service. According to the learned counsel, the rule being subordinate legislation could not be given retrospective effect much less executive orders passed in pursuance to the aforesaid rules;
(ii) That rule 10 referred to above itself was subject to rule 8 of the aforesaid rules which provided for 1 or 2 year period of probation, the passing of Departmental Examination and acquiring the necessary training. Since the respondents Lawyer Magistrates had never been appointed on probation, nor they passed the Departmental Examination or underwent any training, therefore, their appointments under rule 10 of the P. C. S. Service, were wholly without lawful authority;
(iii) The appellant also attacked the order of the Chief Minister, Punjab, dated 6‑5‑1975 granting exemption to the Lawyer Magistrates from the provisions of rule 8 in the purported exercise of rule 13 of the West Pakistan Civil Service (Executive Branch) Rules, 1964, which reads as under:‑
"13. Relaxation.‑Any of these rules may, for reasons to be recorded in writing, be relaxed in individual cases if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned."
According to the learned counsel this was not a case of hardship and thus the case not being covered by rule 13, the Chief Minister, Punjab, had no power to grant the relaxation. He also attacked the mode of granting relaxation, on the ground of hardship. According to the objection, the case of each and every individual was not considered separately‑and on merits which did not constitute adequate compliance of rule 13 referred to above. The learned counsel also attacked the vires of the rules on the ground that the rule as such was inconsistent with the provisions contained in section 5. The relevant provisions of section 5 read as under:
"5. Probation.‑(1) An initial appointment to a service or .post referred to in section 4 (not being an ad hoc appointment) shall be on such probation and for such period of probation as may be prescribed.
(2) Any appointment of a civil servant by promotion or transfer to a service or post may also be made on such probation as may be prescribed.
(3) Where, in respect of any service or post the satisfactory completion of probation includes the passing of a prescribed examination test or course or successful Completion of any training a person appointed on probation to such service or post who before expiry of the original or extended period of his probation has failed to pass such examina tion or test or to successfully complete the course or the training shall except as may be prescribed otherwise,‑
(a) if he w as appointed to such service or post by initial recruitment be discharged, or
(b) if he was appointed to such service or post by promotion or transfer be reverted to the service or post from which he was promoted or transferred and against which he holds a lien or if there be no such service or post be discharged."
According to the learned counsel the provisions of rule 13 being inconsistent with section 5 of the Punjab Civil Servants Act, 197.4, were not saved under section 23 of the Act and were liable to be struck off. Reliance was placed in this behalf on subsection (2) to section 23 of the Punjab Civil Servants Act; 1974;
(iv) That the Lawyer Magistrates all through have been treated as a separate entity. It was pointed out that on 1‑5‑1955, the Lawyer Magistrates were expressly restrained by the order of Chief Secretary to Government, Punjab, from describing themselves as P. C. S. He also pointed out that in fact the recruitment was made in anticipation of the separation of the Executive and Judiciary and the Lawyer Magistrates were to form the Judicial wing of the Magistracy and thus it was against the basic intent and purpose of recruitment to absorb them in the P. C. S. Cadre, with effect from the dates of their appointments. He also pointed out that in fact the Government, on 28‑10‑1958, had decided to abandon the scheme regarding separa tion of Judiciary and Executive and Respondents, being apprehensive of their retrenchment, made the demand for absorption in service. He expressly relied upon the fact that no post prior to 1966 was available in the service and the Lawyer Magistrates could not hold the appointments in vacuum. Thus this aspect of the case also disentitled them to claim their absorption to service from the year 1954 or 1959. He also pointed out that in the Pay Revision Rules, 1964, the Lawyer Magistrates were shown as separate entity which clearly indicated that they were not the part of P. C. S. Service. In fact, they had been granted additional benefit at the time of recruitment and subsequently the Selection Grade which were not extended to the members of P. C. S. service. The learned counsel also pointed out that the decision of the Government to grant the advantage of seniority to the respondents from the dates of their appointments was also inconsistent with the other cases in which the past services of the incumbent similarly absorbed in the regular service, was not counted towards seniority;
(v) That the terms and conditions of appellants were protected and could not be interfered with by any authority to their disadvantage. The learned counsel in this behalf, referred to the terms and conditions contained in the Punjab Civil Service (Executive Branch) Rules, 1930, which did not make any provision for ‑the absorption of Lawyer Magistrates to the service and also to Article 234 of the Constitution of Pakistan of 1973, according to which they became the civil servants under the Constitution subject to the terms and conditions already held by them which did not permit the absorption of Lawyer Magistrates to any service. The appellants also relied upon the proviso to section 22 of the Punjab Civil Servants' Act, 1974, which reads as under:‑
22. Saving.‑Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with case of any civil servant in such manner as may appear to him to be just and equitable:
Provided that where this Act or any rule is applicable to the case of a civil servant the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
According to the appellants the proviso had the effect of limiting the powers of the Governor of the Punjab to pass any order to their detriment;
(vi) The appellants also relied upon the decision of the Lahore High Court in Writ Petition No. 261 of 1958, decided on 15‑4‑1959 by Mr. Justice S. A. Mahmood and Mr. Justice M. R. Kayani, according to which Mr. M. N. Rizvi, Lawyer Magistrate, who joined service…
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