2015 PLC(CS) 767

MUHAMMAD BACHAL MEMON VS Syed TANVEER HUSSAIN SHAH

Petitioner: MUHAMMAD BACHAL MEMON VS Respondent: Syed TANVEER HUSSAIN SHAHHonorable Justice Jawwad S. KhawajaM. Aqil Awan,Hafiz S.A. Rehman

Court: Supreme Court of Pakistan

Full Judgment Text & Judicial Ruling

2015 P L C (C.S.) 767

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

MUHAMMAD BACHAL MEMON and others

versus

Syed TANVEER HUSSAIN SHAH and others

Civil Appeals Nos.5-K of 2014 and 311 to 314 of 2013, decided on 18th June, 2014.

(Against the judgments dated 28-10-2013 and 12-11-2010 passed by the Sindh Service Tribunal, Karachi and High Court of Sindh in Appeal No.95 of 2012 and Constitutional Petition No.D-890 of 2006 respectively)

(a) Sindh Civil Servants Act (XIV of 1973)---

----Ss. 8 & 9---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 9---Constitution of Pakistan, Arts. 139(3) & 240---Civil service---Cadres---Inter se seniority---Engineers working in different Government departments having separate seniority lists---Reconfiguration/merger of departments---Procedure---Creation of combined seniority list---Legality---First cadre of engineers worked in the Provincial Education Department---Second cadre of engineers worked in the Communication and Works Department ("C&W") Department---Said two cadres continued their parallel existence alongside each other---As a result of reconfiguration of departments in the year 2002, Provincial Government created a new Works and Services department and a combined seniority list was prepared for engineers belonging from the two cadres on the basis that said two cadres purportedly stood merged---Held, under the constitutional scheme, administrative changes or allocation and reallocation of the business of the Province could be made under the Rules of Business made under Art. 139(3) of the Constitution but changes in the service conditions including seniority of civil servants could only be made under Art. 240 of the Constitution, something which was not done in the present case---Provincial Assembly did not make any amendments in the Sindh Civil Servants Act, 1973 or the rules framed thereunder for such purpose---Even if an attempt was made by the Provincial Government to provide for a change or merger of cadres it had to be done in accordance with the provisions of S.8 of the Sindh Civil Servants Act, 1973, which related to seniority or through legislation---Preparation of combined/joint seniority list for the engineers from the two cadres was not in accordance with the law---Appeal was disposed of accordingly.

(b) Fundamental Rules, 1922---

----R. 9(4)---Sindh Civil Servants Act (XIV of 1973), Preamble---"Cadre"---Term "cadre" was not defined in the Sindh Civil Servants Act, 1973---Term "cadre" as given in the Fundamental Rules, 1922 was not inconsistent with any of the provisions of the Sindh Civil Servants Act, 1973, thus the same would apply to the service laws of the Province (i.e. Sindh).

----Ss. 8 & 26---Constitution of Pakistan, Art. 240---Inter se seniority of civil servants---Alteration in---Terms and conditions of service including seniority inter se between civil servants could only be altered/effected by means of an Act of the Provincial Assembly as had been expressly stipulated in Art. 240 of the Constitution or by rules made within the rule making power given in S. 26 of the Sindh Civil Servants Act, 1973.

(d) Constitution of Pakistan---

----Art. 139(3)---Civil service---Rules of Business of a Provincial Government---Rules of business could not be made in respect of service matters.

(e) Civil service---

----Government departments--- Merger of--- Cadres--- Merger of government departments did not by itself, amount to merger of cadres.

M. Aqil Awan, Senior Advocate Supreme Court for Appellants (in C.A. No.5-K of 2014).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants (in C.As. No.311 - 312 of 2013).

Mehmood A. Sheikh, Advocate-on-Record assisted by Faraz Raza Advocate, Moazzam Habib, Advocate and Ms. Amina Sheikh, Advocate for Appellants.

Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.A. No.313 of 2013).

Abdul Rahim Bhatti, Advocate Supreme Court for Appellants (in C.A. No.314 of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.A. No.5-K of 2014).

M. Aqil Awan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.3, 4, 6, 7, 9, 10 (in C.A. No.311 of 2013).

Wasim Sajjad, Senior Advocate Supreme Court assisted by Idris Ashraf, Advocate for Respondent No.3 (in C.A. No.312 of 2013).

Nemo for other Respondents.

Sibtain Mehmood, A.A.-G. for Province of Sindh.

Dates of hearing: 7th to 10th and 17th April, 2014.

JUDGMENT

JAWWAD S. KHAWAJA, J.---This appeal (C.A. 5-K/2014), by leave of the Court, has been filed by Muhammad Bachal Memon and 3 others. The appellants are engineers employed in the Works and Services Department of the Sindh Government. The principal contestant in this case is Syed Tanveer Hussain Shah respondent No.1.

2. The dispute between the parties arises on account of contention as to seniority inter se. This contention has arisen because of the creation of the Works and Services Department by the Sindh Government. The appellants impugn the judgment of the Sindh Service Tribunal dated 28-10-2013 whereby an appeal filed by the respondent No.1 was allowed and as a consequence the Provincial Government was directed to prepare separate seniority lists in respect of civil servants noted in the impugned judgment. More importantly, however, in the impugned judgment it was held that "the preparation of a combined/joint seniority list of the Executive Engineers (BS-18) of the Works and Services Department as [it] stood on 1-3-2012 is not in accordance with law". The combined seniority list as a consequence was set aside and it was directed that promotions in the Works and Services Department will not be made on the basis of this combined list but on the basis of separate lists for those who were in the Education Department and the C&W Department.

3. In order to appreciate the controversy between the parties and to ascertain if the impugned judgment requires interference, it is necessary to set out very briefly the facts which have given rise to the dispute between the contesting parties. The appellants as well as respondent No.1 are Engineers. Prior to the reconfiguration of the Departments of the Sindh Government, there were two Departments in which one or the other of the parties was serving. The first Department was called the Communication and Works Department (C&W Department) and the other was the Directorate in the Education Department known as the Directorate of Education Engineering Works. The appellants were employed in the said Directorate in the Education Department. It is not disputed that separate seniority lists were maintained in respect of Engineers in the C&W Department and the Education Department and even subsequent to the creation of the Works and Services Department separate seniority lists continued to be maintained.

4. At this stage it would be useful to set out some relevant facts relating to the employment and service record of the contesting parties before us. The respondent Syed Tanveer Hussain Shah was inducted in the C&W Department on 22-7-1985 in BS-17 and was promoted in BS-18 on 13-4-1995. The first appellant herein namely, Muhammad Bachal Memon was inducted into service in the Education Department on 13-7-1986 in BS-17 and was promoted to BS-18 on 2-3-1992. The controversy between the parties is highlighted by these simple facts. It is clear that the respondent Tanveer Hussain Shah was inducted into government service in 1985 in BS-17 while the appellant Muhammad Bachal Memon was inducted into service in the same grade i.e. BS-17 in 1986. Therefore, had the two been appointed in ordinary course in the same department they would have been included in the same cadre both being engineers and as a consequence, the seniority would have been determined on the basis of dates on which they were initially recruited in service. The dispute as to seniority arose subsequent to the reconfiguration of government departments and the creation of a combined seniority list. It is as a result of such list that the appellant Muhammad Bachal Memon has now been ranked senior to the respondent Syed Tanveer Hussain Shah; this being a result of promotion of Mr. Memon into BS-18 in 1992 in the cadre created and maintained by the Education Department as opposed to the promotion of Syed Tanveer Hussain Shah in BS-18 in 1995 on the basis of the seniority list maintained by the C&W Department.

5. On 17-9-2002, a reorganization of the Departments of the Sindh Government was effected by assigning administrative responsibilities to the various departments in the Sindh Government. As a consequence the engineering works in the Education Department which were being undertaken by the Directorate of Education Engineering Works were transferred for government and administrative purposes to the Communication Department. Later in the same year on 1-11-2002, the government of Sindh created the aforesaid Works and Services Department. As a result engineers who were previously employed in the Education Department and in the C&W Department respectively, were brought under the administrative control of the Works and Services Department.

6. The contention between the parties has arisen, not on account of any reconfiguration/merger of administrative departments but has come about on account of the combined seniority list which has been prepared in respect of Executive Engineers (BS-18) of the Works and Services Department as on 1-3-2012. This list which is on file, purports to have been "prepared in pursuance of orders of Supreme Court of Pakistan in C.R.P. No.1-K of 2011 in C.A. No. 70-K/2010". According to the learned counsel for the appellants the combined seniority list as prepared by the Sindh Government is proper and rightly shows the appellants to be senior to the respondent Syed Tanveer Hussain Shah. Learned counsel for the respondent, however, has argued that any reconfiguration of administrative departments by the Provincial Government is meant for administrative convenience and governance only. According to him, such reorganization cannot have any effect on the service structure and the rights including seniority of civil servants in the Province.

7. We have heard learned counsel for the parties at length and have also gone through the impugned judgment and record with their able assistance. At this juncture, it is important to note that the appellants in this appeal are respondents in connected Civil Appeals Nos. 311 to 314 of 2013. The respondent Syed Tanveer Hussain Shah is, along with others, appellant in Civil Appeal No.311 of 2013. In the connected appeals, a judgment of a Division Bench of the Sindh High Court dated 12-11-2010, has been impugned. According to the Sindh High Court, the merger or reconfiguration of administrative departments, by itself led to a merger of the two cadres with effect from 1-11-2002. It has, therefore, been held by the Sindh High Court that "preparation of two separate seniority lists is without lawful authority and of no legal effect". It is in this backdrop that the dispute between the parties has to be resolved.

8. We thus have two conflicting judgments before us; the first by the Service Tribunal and the second by a learned Division Bench of the Sindh High Court. Both judgments have been assailed before us. Therefore, the question as to which forum i.e. the High Court or the Service Tribunal had jurisdiction to decide the issue in contention is of academic interest only. In either event an appeal would lie to the Supreme Court whether under Article 212 or Article 185 of the Constitution. The point of law being the same in both cases, is to be adjudicated.

9. Our understanding of the issue in contention between the parties has to originate from first principles. There are two provisions of the Constitution which have relevance in this context. Article 139(3) of the Constitution stipulates that "the Provincial Government shall ... make rules for the allocation and transaction of its business". Article 240 of the Constitution provides that "subject to the Constitution, the appointments to and the conditions of service of persons in the service ... of a Province and posts in connection with the affairs of a Province" shall be determined by or under Act of the Provincial Assembly. Article 241 stipulates that until the appropriate legislature makes a law under Article 240, "all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force". The controversy which has arisen can be resolved by examining the various laws, rules and statutory instruments cited before us and tracing the same back to either one of the two provisions of the Constitution viz. Article 139 or Article 240 thereof.

10. The core issue before us is as to whether the merger, creation or reorganization of the administrative departments of the Sindh Government has a bearing on the service structure, seniority, promotions and other terms of service of civil servants employed in the service of the Province. According to the learned counsel representing the appellants Muhammad Bachal Memon etc., the judgment of the High Court represents the correct interpretation of law. On the other hand, learned counsel representing Syed Tanveer Hussain Shah etc. have argued that this judgment has been rendered without examining the above referred constitutional provisions and without taking into account the separate and distinct sources from which the administrative affairs of the Province and the Provincial laws respectively, relating to service matters derive their authority. Rules of Business of the Sindh Government made under Article 139 ibid show that the work of the Sindh Government was distributed and redistributed from time to time amongst the various administrative departments of the Province. Thus, the allocation of engineering works of the Sindh Government were assigned to departments in which engineers having similar educational qualifications, work experience etc. were employed. As a consequence, we have noted that originally the building works of the Sindh Government were assigned to the works Department. Thereafter by means of notification dated 27-8-1991, a part of the aforesaid works was carved out of the responsibility of the Works Department and was assigned to the Education Department. This was done by amending the Rules of Business prepared under Article 139 ibid, whereby in the scope of work allocated to the Works Department the words "except those entrusted to the Education Department" were inserted.

11. The amended Rules of Business will help in making matters clear and will facilitate understanding of the controversy between the parties. The period prior to and after 27-8-1991 may be juxtaposed as under to highlight the administrative changes in the various departments of the Sindh Government.

Communications Department prior to 27-8-1991

Communications Department after 27-8-1991

1. Construction, maintenance and repairs of roads, bridges, ferries, tunnels, ropeway, causeways and tramway lines.

2. Engineering training other than-- (i) Engineering Colleges; and (ii) Engineering Schools.

3. Inland waterways and inland navigation.

4. Leases of Ferries and Bridges.

5. Road Fund.

6. Service matters, except those entrusted to the Services and General Administration Department.

7. Tolls (including those levied by Local Bodies and Local Council).

(no change)

Works Department prior to 27-8-1991

Works Department after 27-8-1991

1. Accommodation for Federal and Provincial government servants in the Province, except that entrusted to the Services and General Administration Department.

1. Accommodation for Federal and Provincial Government servants in the Province, except that entrusted to the Services and General Administration Department.

2. Building--

(a) Construction, equipment, maintenance, repairs and fixation of rent of all Government buildings residential and non-residential, including tents, dak bungalows and circuit houses.

(a) Construction, equipment, maintenance, repairs and fixation of rent of all Government buildings residential and non-residential, including tents, dak bungalows and circuit houses [except those entrusted to the Education Department].

(b) Public Health works pertaining to Government buildings and Government residential estates.

3. Service matters except those entrusted to the Services and General Administration Department.

(change highlighted

Education Department prior to 27-8-1991

Education Department after 27-8-1991

1. Co-ordination of schemes for higher studies abroad.

2. Copy-right.

3. Education of handicapped children, specially deaf, dumb and blind.

4. General Education:--

(a) Primary education;

(b) Secondary education; and

5. Grant of Scholarships.

6. Matter relating to Universities including those dealt with by the Governor as Chancellor.

7. Promotion of scientific research.

8. Production and distribution of education and scientific films.

9. Deleted.

10. Service matters, except those entrusted to the Services and General Administration Department.

11. Technical education and research, including Agriculture and Engineering Colleges, Polytechnic and Vocational Schools, but excluding Medical Colleges and Law Colleges.

12. Engineering Works pertaining to Education Department relating to construction and maintenance of network of Educational centers including sub-sectors like College Education, Technical Education, Physical Education and Miscellaneous Education.

(change highlighted)

12. It is thus, apparent that the items of work specified in Sr. No.12 above after 27-8-1991 constituted a change in the Rules of Business of the Sindh Government. The said item at Sr. No.12 prior to 27-8-1991 was covered in the item at Sr. No.2 assigned to the Works Department. It may be emphasized that no change was made in the Sindh Civil Servants Act, 1973 or the rules framed thereunder. In the context of the present matter it appears that the change brought about in the Rules of Business was construed as a change in the service laws of employees in the Works Department and the Education Department. For reasons considered in this judgment, this understanding of changes in the Rules of Business was erroneous.

13. With the promulgation of the Sindh Local Government Ordinance, 2001, the government of Sindh redistributed the responsibilities respectively of the Education Department and the C&W Department. On 1-11-2002, the Directorate of Engineering Services in the Education Department was merged with the C&W Department. What is important to bear in mind at this stage is that the notifications which have been mentioned above were issued in exercise of the powers vested in the Government of Sindh by Article 139 of the Constitution. There was no decision or legislation or notification made under the service laws of the Province which laws trace their origins to Article 240 of the Constitution.

14. According to the learned counsel representing Tanveer Hussain Shah etc., the notifications and changes made in the administrative departments of the Sindh Government did not have any bearing on the service structure and inter se seniority of the engineering cadre in the erstwhile Directorate of Education Engineering Works and the Cadre of Engineers in the C&W Department re-designated as Works and Services Department w.e.f. 1-11-2002.

15. It is instructive at this stage to examine the chronology of events starting from August 1991, relating to engineering works assigned to the Education Department. This can best be seen from the following:--

August 1977

Establishment of Project Implementation Unit (PIU) headed by Project Director for 3rd Education Project Foreign Funded (I.D.A Credit No. 678-Pak), with one BS-20, one BS-18, one BS-17 and other Ministerial Establishment.

1983

Maintenance and repairs works of Education Institutions was also assigned to PIU.

1984

The PIU was wound-up and was renamed as Directorate of Engineering Works in Education Department to carry out Annual Development Program (ADP) relating to Primary and Secondary Education [without making necessary amendment in Rules of Business of Communication and Works (C&W) and Education Department (ED)]. IDA credited Second Primary Education Project, ADB funded Science Education Project. Owing to opening up of regular Directorate and enhancement of their functions, they started recruiting Assistant Engineers (BS-17) on ad hoc basis, along with transferred staff of PIU 3rd Education Project.

1991

Amendment was made in Rules of Business of Communication and Works (C&W) and Education Department (ED). The words "except those entrusted in the Education Department" were added at bottom of Serial No.9 of Buildings Department C&W. These functions were added at Sl.No.12 in Education Department as under: "Engineering works pertaining to the Education Department relating to construction and maintenance of network of Education Centres including sub-sectors like college education, technical education, physical education and miscellaneous education."

2002

Administrative control of Education Works Directorate was transferred to C&W Department in the wake of Devolution Plan of 2001. Amendments were made in Rules of Business, deleting S.No.12 from functions of ED and adding these duties at S.No.7 of Communication Department of C&W Department, while retaining the amendment made in 1991 in S. No.9 of Building Department of C&W Department with addition of words "except those entrusted in the Education Department" at the bottom of its S.No.9. (emphasis supplied)

16. The term "department" is defined in Rule 2(xi) of the Sindh Government Rules of Business, 1986 to mean an administrative unit in the Secretariat responsible for the conduct of business in a specified sphere and the term "business" as per Rule 2(iv) means all work done by the Government. Rule 3(ii) of the Sindh Government Rules of Business, 1986 further clarified that the business shall be distributed amongst several Departments in the manner indicated in Schedule-II. The relevant part of business allocated to the Works and Services Department given in the Schedule-II is as under:---

"WORKS AND SERVICES DEPARTMENT

(1) Construction, maintenance and repairs of Road bridges, ferries, Tunnels, ropeways, Causeways and tramways lines.

. . .

(7) Engineering Works pertaining to the Education Department relating to construction and maintenance of network of Education Centers including subsections like college education, technical education, physical education and miscellaneous education.

. . .

9. Building-

(a) Construction, equipment, maintenance, repairs and fixation of rent of all Government residential and non-residential, including tents, dak bungalows and circuit houses. Except those entrusted to the Education Department.

(b) Public Health works pertaining to Government buildings and Government residential."

17. Coming next to the term "Cadre", we find that this term has been defined in rule 9(4) of Fundamental Rules, 1922. The said Rule defines "cadre" to mean "the strength of the service or a part of the service sanctioned as a separate unit. Section 26(2) of the Sindh Civil Servants Act, 1973 provides that any rules, orders or…

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