Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: BASHIR AHMED VS Respondent: KHURSHIDUL HAQ
1983 P L C (C
1983 P L C (C. S.) 652
[Lahore High Court]
Before Rustam S. Sidhwa and Muhammad Ilyas, JJ
BASHIR AHMED
versus
KHURSHIDUL HAQ AND ANOTHER
Intra‑Court Appeal No. 168 of 1982, decided on 1st March, 1983.
(a) Punjab Civil Servants Act (VIII of 1974)‑
‑‑S. 2(1) (b)‑Naib‑Naazir of Senior Civil Judge's Court, held, person who hold civil post in connection with affairs of Province‑Act, held, enacted to regulate by law appointment to and terms and conditions of all services in Province and to provide for .matters, connected therewith or ancillary thereto.
(b) Punjab Civil Servants Act (VIII of 1974)‑
‑‑S. 3‑Terms and conditions of service of civil servants as provided in Act and Rules, held, cannot be treated as ancillary supports or peripheral props which can be conveniently overlooked like regulatory or enabling provisions.
(c) Punjab Civil Servants Act (VIII of 1974)‑
‑‑Ss. 3, 4 & 8 ‑ Rules integral part of terms and conditions Mandates spelt out in Ss. 3, 4 & 8 show that rules framed there under are an integral part of terms acid conditions of service of civil servants and all appointments whether made by way of initial recruitment or promotion must conform to requirements set out both in Act and Rules.
(d) Punjab Civil Servants Act (VIII of 1974)---
‑‑Ss. 2 (1) (e). & 23 (2)‑Rules made or deemed to have been made‑‑ Interpretation‑Rules made under Act are those made by Governor or his delegate, whereas Rules deemed to be made are those rules, orders or instructions dealing with terms and conditions of civil servants duly made or issued by competent authorities and are in force immediately before commencement of Act and not being inconsistent with provisions of Act.
(e) Punjab Civil Servants Act (VIII of 1974)‑
‑‑S. 23 (1)‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, rr. 2 to 7 ‑ Object and scope of rules- Rules do not cover whole range of terms and conditions of services of Province of Punjab Rules primarily appear to bring about a codification or uniformity in procedure relating to appointments to posts by initial recruitment, promotion, transfer or deputation and ad hoc appointments and matters connected therewith, such as probation, confirmation, seniority tests for promotions etc.
(f) Punjab Civil Servants Act (VIII of 1974)‑‑'
---Ss. 4 & 8 and Punjab Civil Servants (Appointment and Condi tions of Service) Rules, 1974, rr. 2 to 7‑Mandate under Ss. 4 & 8 directs that appointments by initial recruitment and promotion to be made in prescribed manner‑Full compliance of Rules, held, a mandatory duty on part of appointing or promoting authority.
(g) West Pakistan General Clauses Act (VI of 1956)‑
‑‑S. 2 (4)‑Notification‑Effectiveness‑Notification does not become effective till it is gazetted.
M.U.A. Khan v. Rana M. Sultan and another P L D 1974 S C 228 Sh. Jamal Din and others v. Government of Sind and others P L D 197 Kar. 424 ; Abul A'la Maudoodi v. Government of West Pakistan P L I 1964 (W.P.) Kar. 478 and Muhammad Suleman etc. v. Abdul Ghani P L D 1978 S C 190 ref.
(h) Punjab Civil Servants Act (VIII of 1974)‑-‑
‑‑S. 8‑Section 8 provides two mandates (i) that a civil servant to be eligible for promotion to a higher grade of service or cadre to which he belongs must possess minimum qualifications and (ii)). that promotion shall be made as may be prescribed on basis of merit, if post is a selection post and on basis of seniority‑cum‑fitness if post is a non‑selection post..
(i) Punjab Civil Servants Act (VIII of 1974)‑
----Ss. 8 & 23 (1)‑Punjab Civil Servants (Appointment and Condi tions of Service) Rules, 1974 ‑ High Court (Lahore) Rules and Orders, Vol. 1, Chap. 18‑A ‑ Appointment of Civil Naazar Minimum qualifications .for eligibility for promotion to post of Civil Naazar being contained in High Court (Lahore) Rules and Orders and such provisions not provided in Punjab Civil Servants (Appointment and Conditions of Service) 'Rules, 1974, former will prevail not being inconsistent with provisions of Act.
(j) Punjab Civil Servants Act (VIII of 1974)‑
‑‑S. 8 ‑ Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Part II‑High Court (Lahore) Rules and Orders Vol. 1, Cha. 18‑A‑Civil Naazar ‑ Mode and manner of pro motion‑Such mode and manner, held, provided in Part 11 Punjab Civil Servant. (Appointment and Conditions of Service) Rules; 1974 and any provisions available in Chap. 18‑A of High Court (Lahore) Rules and Orders, Vol.‑ 1, held, would automatically stand implie dly repealed.
(k) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑
‑‑S. 9‑Promotion ‑ Recommendations of Promotion Committee under r. 9, held, mandatory in nature.
(l) Punjab Civil Servants Act (VIII of 1974)‑
‑‑S. 8 read with Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, r. 9 ‑Promotion ‑ No person can be promoted to a post by an appointing authority without considering recommendations of appropriate Departmental Promotion Committee or Board‑Rules, held, cannot be flouted on ground of expediency.
M.U.A. Khan v. Rana M. Sultan and another P L D 1974 S C 228 distinguished.
(m) Punjab Civil Servants Act (VIII of 1974)‑
‑‑Ss. 8 & 23 read with Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 ‑ Promotion of Civil Naazar -Contention that promotion to post of Civil Naazar by process of Departmental Selection Committee neither necessary nor expedient for carrying out purposes of Act‑Held, since Punjab Civil Servants (Appointment; and Conditions of Service) Rules, 1974 bring unifor mity in respect of matters relating to appointment of person by initial recruitment, promotion, transfer, deputation and ad hoc appointment and to provide safeguard, Governor had provided for constitution of Promotion and Selection Committees, it cannot be said that reference to such Committees in Rules 1974 is ultra vires of Act‑Action of Senior Civil Judge promoting Assistant Naazar as Civil Naazar without consideration of recommendations of Committee, held further, illegal and without jurisdiction.
(n) Punjab Civil Servants Act (VIII of 1974)‑
‑‑S. 6‑Promotion to a higher post‑Appeal‑No appeal, held, lies to a Service Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be promoted to a higher post or grade.
Abdul Manan Khan v. Director, Social Welfare, Punjab, Lahore 1975 P L C (C.S.T ) 129 ;Iqan Ahmad Khurram v. Government of Pakistan P L D 1980 S C 153 ; Mian Amanul Mulk v. N:‑W. F. P. , through Chief Secretary P L D 1981 Pesh. 1 and Muhammad Afzal etc v. Province of the Punjab and others 1977 P L C (C.S.T.) 195 ref.
(o) Punjab Civil Servants Act (VIII of 1974)‑
---S. 8‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑"Promotion shall be made as may be prescribed in S. 8‑Means prescribed by Rules‑Failure of appointing authority to promote without considering, recommendations of Departmental Promotion Committee would‑ have effect of rendering S. 8 of Act, nugatory.
Sh. Jamal Din and others v. Government of Sind and others P L D 1976 Kar. 424 ref.
(p) Punjab Civil Servants Act (VIII, of 1974)‑
‑‑S. 6‑‑Promotion‑Appeal‑Case involving right of person to be considered for promotion, as apart from his right to challenge his fitness or otherwise to be promoted, appeal to Tribunal, held, maintainable.
Muhammad Afzal etc. v. Province of the Punjab and others 1977 P L C (C.S.T.) 195 ref.
K. H. Khurshid for Appellant. S. Riaz Ahmad, A.‑G. (Punjab) for Respondents Nos. 1 and 2. Sh. Muhammad Shafi for Respondent No. 3.
Dates of hearing : 21st, 23rd, 28th February and 1st March, 1983.
JUDGMENT
RUSTAM S. SIDHWA, J.‑This is an intra‑Court appeal preferred by Bashir Ahmad, appellant, against the judgment of a learned Single Judge of this Court dated 26‑6‑1982 passed in Writ Petition No. 1585/S‑81 whereby he dismissed the writ petition of the appellant.
2. The brief facts giving rise to this appeal are that on the retire ment of Syed Niamat Ali Shah from the post of Civil Naazar, Gujran wala, on 5‑1‑1980, the said post fell vacant for appointment through promotion. The Senior Civil Judge, Gujranwala, considered the merits of the following Naib Naazars who were working within his district and whose inter se seniority was as follows :‑
(1) Khurshid‑ul‑Haq, respondent No. 3. (2) Muhammad Bashir. (3) Nazir Hussain. (4) Bashir Ahmad, appellant. (5) Ghulam Hussain, and' (6) Abdul Rashid.
On 10‑3‑1980 the learned Senior Civil Judge promoted Bashir Ahmad, appellant, who was at No. 4 on the seniority list of Naib Naazars, as Civil Naazar, Gujranwala. Khrshid‑ul‑Haq, respondent No. 3, and Muhammad Bashir, Naib Naazars, feeling aggrieved by the said order, filed depart mental appeals before the District Judge, Gujranwala. The latter withdrew his appeal, whereas respondent No. 3 pursued the same. Before the learned District Judge, respondent No. 3. took the objection that as the parties were civil servants .as defined in section 2 (1) (b) of .the Punjab Civil Servants Act, 1974, they were governed by the provisions of the said Act and as section 21 (2) proviso barred any representation on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade, neither any appeal was maintainable nor the District Judge, Gujranwala, was competent to adjudicate the' same. The learned District Judge, by his order dated 17‑3‑1981, held that though the parties were unmistakably civil servants under the Punjab Civil Servants Act, 1974, yet by virtue of section 23 (2) of the said Act, rules given in Chapter 18‑A of the High Court Rules and Orders, Volume I, stood saved and, therefore, the appeal was competent before him and he had a right of hearing the same. Taking up the case on merits, the learned District Judge held that as the learned Senior Civil Judge, Gujranwala, had not taken into consideration the recommendations of the Promotion Committee appointed by the Punjab Government under rule 4 of the Punjab Civil Servants (Appointment and Conditions of .Service) Rules, 1974, his order was in violation of the mandatory rules. Accordingly, the learned District Judge accepted the appeal, set aside the impugned order and sent back the case to the learned Senior Civil Judge, Gujranwala, with the direction that he should pass the order de nova after taking into consideration the recommendations of the Promo tion Committee. Being aggrieved by the said order, Bashir Ahmad, appellant, filed a Writ Petition (W. P. 1585iS‑81) against the same in this Court averring that no appeal lay to the District Judge, but to the Administrative Tribunal, and that the order of the learned District judge was without jurisdiction. During the arguments a number of contentions points were raised. The learned Single Judge by his judgment dated ‑2.6‑6‑1982 held that as no appeal lay to the Administrative Tribunal against an order or decision of a departmental Authority determining the fitness or otherwise of a person to be promoted to a higher post or grade, the Administrative Tribunal had no jurisdiction to hear an appeal against any order of promotion and, therefore, the High Court was com petent to examine the legality of the impugned order in its constitutional jurisdiction : that the District Judge, Gujranwala had no jurisdiction to hear the appeal as the rule relating to appeals embodied in Chapter 18,A of the High Court Rules and Orders, Volume 1, was not protected by virtue of section 23 (2) of the Punjab Civil Servants Act, 1974, as it was inconsistent with the provisions of section 21 (2) proviso of the said Act ; and that as the Promotion Committee was constituted by the Punjab Government's notification of 10‑3‑1980, and the learned Senior Civil Ju4ge, when promoting the appellant, had not taken into consideration the recommendations of said Committee, his order was without juris diction. The learned Single Judge, therefore, held that he did not feel inclined to exercise his discretion to interfere with the impugned order of the learned District Judge, Gujranwala, and he, therefore, dismissed the writ petition. Being aggrieved by the judgment of the learned Single Judge, Bashir Ahmad, appellant, has filed the present intra‑Court appeal (I.‑C.A. ‑168/82), which is now before us for disposal.
3. On behalf of the appellant it was submitted that though there was no right of representation or appeal of a Departmental nature against the order of the learned Senior Civil Judge, Guiranwala, dated 10‑3‑1980, yet the Administrative Tribunal had the jurisdiction to hear an appeal against the order of the learned Senior Civil Judge dated 10‑3‑1980 and that, therefore, the order of the learned District Judge, Gujranwala, passed. in appeal was without jurisdiction and the learned Single Judge should have set aside the same by virtue of Article 212(2) of the Constitution of the Islamic Republic of Pakistan. In the alternative, it was submitted that assuming, though not admitting, that the Adminisirative Tribunal had no jurisdiction, then this Court had jurisdiction to look into the legality of the judgment of the learned Senior Civil Judge and as on 10‑3‑1980, when the order of the Senior Civil Judge promoting the appellant as Civil Naazar was passed, there was no Promotion Committee in existence, he was competent to pass the order, which he did, and the learned Single Judge should have set aside the order of the District Judge, Gujranwala, which was illegal. In this connection, it was submitted that the Punjab Govern ment's notification of 10‑3‑1980 was actually gazetted on 1‑4‑1980 and had no effect till the latter date. M.U.A. Khan v. Rana M. Sultan and another (P L D 1974 S C 228) and Sh. Jamal Din v. Government of Sind and others (P L D 1976 Kar. 424) were cited to show that the non‑consideration of the Promotion Committee did not bar the appointing authority from making the promotion.
4. On behalf of Khurshid‑ul‑Haq. respondent No. 3 it was submitted that with the promulgation of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, on 28‑8‑1974, all appointments by promotion to the posts in the Process Serving Establishment of the Civil Courts in various grades could only be made on the recommendations of the appropriate Promotion Committee and assuming there was no such Committee, it did not give any power to the learned Senior Civil Judge to act independently under the old Rules appearing in Chapter 18‑A of the High Court Rules and Orders, Volume I, which stood automatically repealed. It was also contended that no right of representation or appeal lay from any order of promotion both under the Punjab Civil Servants Act, 1974, or the Punjab Administrative Tribunals Act, 1974. In these circumstances, it was submitted that the judgment of the learned Single Judge did not call for any interference.
5. On behalf of the Provincial Government, the learned Advocate- General, Punjab, submitted that the promotion of the appellant made by the learned Senior Civil Judge, Gujranwala, on 10‑3‑1980, was not a valid promotion, but could be treated as an ad hoc promotion under rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, and that the said ad hoc promotion terminated on the expiry of six months from the date of promotion on 9‑9‑1980, whereafter the same not having been further extended on ad hoc basis, the appellant stood reverted as Naib Naazar and that the question of regular promotion to the post of Civil Naazar was still open, which could be made under rule 9 of the said Rules.
6. We have heard arguments of the learned counsel for the appellant, the Provincial Government and Mr. Khurshid‑ul‑Haq, respondent No. 3, and have also perused the record. By virtue of the definition of "civil servant" as contained in section 2(l)(b) of the Punjab Civil Servants Act, 1974, it cannot be denied that both the appellant and respondent No. 3 are persons who hold civil posts in connection with the affairs of the Province and, therefore, are civil servants: The Punjab Civil Servants Act has been enacted to regulate by law the appointments to and term and conditions of all services of the Punjab Province and to provide for matters connected therewith or ancillary thereto. Section 3, 4, 8, 22 and 23, which are relevant for the purposes of this appeal, are repro duced below :‑
3. Terms and conditions.‑The terms and conditions of service of a civil servant shall be as provided in this Act and the rules.
4. Appointments.‑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.
8. Promotion.‑(I) A civil servant possessing such minimum qualifica tions as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promo tion in any higher grade of the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non‑selection post to which promotion shall be made as may be prescribed ‑‑‑
(a) in the case of a selection post on the basis of selection on merit ; and
(b) in the case of a non‑selection post, on the basis of seniority‑cum- fitness.
22. Saving.‑Nothing in this Act or in any rule shall be construed to limit or abridge the power of the .Governor to deal with the 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.
23. Rules.‑(I) The Governor, or any person authorised in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.
(2) Any rules, order or instructions in respect of any terms and condi tions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act‑ shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
According to the mandate as contained in section 3 above, the terms and conditions of service of civil servants have to be provided "in the Act and the rules". To the extent to which the rules lay down such terms and conditions, they cannot be treated as ancillary supports or peripheral props, which can conveniently be overlooked, like regulatory or enabling provisions. Further, according to the mandate as contained in section 4 of the said Act, appointments to the civil services of the Province or to civil posts in connection with the affairs of the Province, have to be "made in the prescribed manner" by the Governor or by persons authorised by him in that behalf. Still further, according to the mandate contained in section 8 of the said Act, civil servants possessing such minimum qualifications "as may be prescribed" are eligible for promotion to the next higher posts and where the posts are selection posts, promotions have to be made "as may be prescribed" on the basis of selection on merit, and where such posts are non‑selection posts, promotions have to be made "as may be prescribed on the basis of seniority‑cum‑fitness. The mandates, as can he spelt out from sections 3, 4 and 8 of the said Act, show that the rules are an integral part of the terms and conditions of the service of civil servants and that all appointments, whether by way of initial recruitment or promotion, must conform to the requirements as set out both in the Act and the Rules.
7. Section 2 (1) (e) of the Act defines "rules" as "rules made or deemed to have been made under this Act". Rules made under the Act are those which, under section 23 (1) of Act, are made by the Governor or his delegate, whereas rules deemed to be made under the Act are those which, under section 23 (2), are rules, orders or instructions dealing with the terms and conditions of civil servants duly made or issued by competent authorities and which are in force immediately before the commencement of the Act, to the extent to which they are not inconsistent with the provisions of the Act. On 28‑8‑1974 the Punjab Civil Servants (Appoint merit and Conditions of Service) Rules, 1974, were gazetted. These are, the rules made by the Governor under section 23 (1) .of the Punjab Civil Servants Act, 1974. The said rules of 1974 basically deal with appoint ments to posts by initial recruitment, appointments to posts by promotion, transfer or deputation and ad hoc appointments. Rule 2 (f) defines a "Committee" as a Departmental Promotion Committee or a Departmental Selection Committee. Rule 3 states that appointments to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time ; that appointments by promotion or transfer shall be made in accordance with Part 11 and by initial recruitment in accordance with Part III of the rules ; and that appointments shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time, Rule 4 inter alia provides for constitution of Departmental Promotion and Selection Committees in all Department and Offices of the Government and states that the Departmental Promotion Committees shall make selections for appoint ment by promotion or transfer to posts in or under a Departmental or Office for which it is constituted in Grade‑18 and below. Rule 5 states that where an appointing authority, other than the Chief Minister, does not accept the recommendation of a Committee or Board, it shall record reasons thereof and obtain orders of next higher authority and act accordingly. Rule .6 designates the various authorities competent to make appointments to the various grades. Rule 7 states that a person appointed to a post in a grade against a substantive vacancy shall remain on proba tion for a period of two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise ; provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all. Rules 3 to 7 appear in Part I headed "General". Rule 3 talks of appointment to posts by initial recruitment arid promotion.
The ward "appointment" is used in a general sense to cover all types of appointments i: e. by initial recruitment and promotion. Rule 7, which deals with appointments to substantive vacancies, states that the period of probation in case of appointments by initial recruitment will be two years and for other appointments, one year. This rule, therefore, also deals with appointments to substantive vacancies through promotion. Rule 6, which deals with authorities competent to make appointments to various grades, also can be pressed into service to deal with, appointments by promotion, as the appointing authority fox the next higher post is itself the competent authority for promotion to that post. Part II deals with appointments by promotion, transfer or deputation. Rule 9, which fails in Part II, states that appointments by promotions or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board and that such promotions, including pro forma promotions, shall not be claimed as of right by any Civil Servant. A close inspection of all these rules show that the Rules of 1974 do not cover the whole range of terms and conditions of services of the Province of the Punjab. The object of the 1974 Rules appears primarily to bring about a codification or uniformity in the procedure relating to appointments to posts by initial recruitment, promotion, transfer or deputation and ad hoc appointments and matters connected therewith, such as probation confirmation, seniority, tests for promotion, etc. Since the 1974 Rules purport to codify the procedure relating to the matters stated above and the mandate contained in sections 4 and 8 of the Punjab Civil Servant Act, 1974 directs that appointments by initial recruitment and promotion should be made in the prescribed manner full compliance of the rule becomes a mandatory duty on the part of the appointing or promoting authority to comply.
8. The main question that arises in the present appeal is whether the appointment made by the learned Senior Civil Judge on 10‑3‑1980 can be sustained. It is admitted on all sides that on this date the notification of 10th March, 1980, whereby, Selection and Promotion Committees were…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.