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 reason--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 However, the Laws (Continuance in Force) Order, 1958, 'was repealed on 8-6-1962 when the Constitution of Pakistan (1962) came into force.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 PLC (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 on 19-3-1947 against a temporary post of Extra-Assistant Commissioner and was ultimately selected through a Competitive Examination and appointed to the service on 1-7-1951, not allowed the advantage of his service from 1947 to 1951 on the ground that in the absence of any order accepting the respondents as members of regular service, he could not be allowed any benefit of service prior to 1951 when he was appointed to the service on regular basis. The above decision of the Lahore High Court was also challenged in an appeal before the Supreme Court of Pakistan which was rejected on 2-4-1965. The decision of the Supreme Court has since been reported as M. N. Rizvi, P. C. S. v. Province of West Pakistan and 55 others 1977 SCMR 365. The following observations from the aforesaid decision were cited by the learned counsel for the appellants, in support of his contention:- It is, no doubt true that there is no relationship between the mode of appointment and the fixation of seniority, but seniority cannot commence until a person has entered the service. In the present case, as we have already pointed out, the appellant had not entered the regular service by his first appointment in 1947, for, that was outside the regular cadre to which the Punjab Civil Service (Executive Branch) Rules applied. It is also conceded on behalf of the appellant that the rules as to seniority did not apply to temporary officials. It is difficult, therefore, to appreciate how the rules as to seniority become applicable with retrospective effect as soon as the person is taken on the regular service."
18. With the above submissions, the learned counsel for the appellants pressed for the acceptance of the appeal.
19. The learned Government Pleader for the respondents endeavored to meet the above contentions on the following grounds:-,
(i) That the appeal as filed on 9-7-1977 against the order of the Government dated 24-12-1976, was barred by time. According to the learned Government Pleader, there was no application for the condonation of delay, therefore, the appeal was liable to be rejected on that ground;
(ii) Secondly the learned Government Pleader also objected to the maintainability of the appeal on the ground that all the appellants in this case did not file any representations against the order dated 24-12-1976 and therefore, the appeal was hit by proviso (a) to section 4 of the Punjab Service Tribunal Act, according to which no appeal lies to this Tribunal unless the appellants have filed an appeal, Review Petition or representation to the next higher authority and after the same remained undecided, the period of 90 days had lapsed thereafter. According to the learned Government Pleader the appellants admittedly did not comply with the requirements of the proviso above. The appeal was, therefore, liable to be rejected on that ground.
(i) On merits, the learned Government Pleader countered the objection as to the retrospectivity of the impugned order and also the objections as to the violation of rule 8 of the West Pakistan Civil Service (E. B.) Rules., 1964, with the submissions that the same stands already concluded by the judgment of the Punjab Civil Service (Appellate) Tribunal dated 11-5-1971. According to the learned Government Pleader, the appellants filed a Writ Petition No. 751-S of 1971, before the Lahore High Court which abated on 3-2-1975 and thus the decision of the Civil Services (Appellate) Tribunal, became final as laid down in section 12(4) of Ordinance No. IV of 1970 which was to the following effect:-- "(4) Any final order by the Tribunal shall be given effect to by the Competent Authority and shall not be questioned in any manner and before any Court including the High Court."
He submitted that after abatement of the writ petition, the appellant bad the remedy in appeal under section 8 of the Punjab Service Tribunal Act, 1974. In re: Jaffar Hussain's case 1978 NLR 144 and PLD 1974 Lah. 545 and PLJ 1979 Lah. 272, it was argued that since the Civil Services (Appellate) Tribunal, was not the Departmental Authority, therefore, the findings of the aforesaid Tribunal in an appeal under sec--tion 4 of the Punjab Service Tribunal Act, 1974, could not be assailed;
(iii) According to the learned Government Pleader, the findings of the Civil Services Tribunal, also operated as res judicata against the appellant inasmuch as the provisions of C. P. C. Were applicable to the proceedings before this Tribunal. He submitted that since the previous decision was between the same parties and the issue involved being the same and having been adjudicated upon by the Tribunal of competent jurisdiction, therefore, the same issues could not be re-opened except by an appeal filed under section 8 of the Punjab Service Tribunal Act. He went on to contend that the Department had done nothing more than to implement the orders of the Punjab Civil Services (Appellate) Tribunal. Thus the order of the Departmental Authority was unexceptionable. He also relied upon the said decision and also upon the advice of Punjab Law Department, dated 7-6-1973, to show that rule 10 has been held intra vires of Article 178 of 1962 Constitution.
It was argued that the right to seniority was never protected by the Constitution. As regards Article 234 of 1962 Constitution, he submitted that it simply provided for the continuance in office of the persons already in service of Pakistan. Provisions of Article 234 of the law were subject to the constitution and the law. Even the Constitution vide Article 178 itself did not create any protection to the existing terms and conditions of service of the civil servants except in the case of pay and superannuation. Thus the seniority was none of the terms and conditions protected by the Constitution and it was wrong to contend that the right to seniority was protected by Constitution or under any provision of law. As such, it was open to the Government to make the absorption in question. Accord--ing to the Government Pleader, rule 10(b) conferred ample authority upon the Government to assign seniority to them from the dates of their respective appointments;
(iv) The learned Government Pleader also relied upon the following provisions contained in rule 9 of 1964 Rules to contend that inter se seniority of the appellants vis-a-vis respondents was to be regulated under that rule:-
(a) in case both officers appointed by initial recruitment and the officer appointed otherwise have been appointed against substantive vacancies, or both have been appointed against temporary vacancies with reference to the date of appointment to such vacancy in the case of the officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of the officer appointed otherwise: Provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment.
Relying upon the above, he submitted that the seniority in the case of officers appointed otherwise, was to count from the continuous date of appointment against the vacancy. He also pointed out that after the promulgation of P. C. S. (Change in Nomenclature of Service and Abolition of Classes)
Rules, 1974 on 3-4-1974, the various classification of services having been abolished and replaced by unified grades the appointment in the grade became the crucial consideration. He also relied upon the observations made by that then Chief Secretary, West Pakistan (Mr. S. Afzal Agha) reproduced in para. 11 ibid. In view of above, the appellants and the respondents Lawyer Magistrates being in the identical grade were entitled to reckon their seniority from their respective dates of appointments in the grade;
(v) As regards the objection of the appellants that in the absence of any post prior to October, 1966, the appellants could not be appointed to the service from any date, he pointed out that in the matter of seniority the argument had little force. The creation of the post had been considered necessary only to obviate the audit objection against the payment of the salary for the relevant period. Since in this case the appellants had already drawn their salary in the same scale, thus there was no question of creation of any post for the period in dispute. He also brought to our notice that in the cases of re-organization of the department, there were ample precedents granting benefit of past service to the employees belonging to the different classes absorbed in the other services in comparable grades on regular basis. He also sought to derive support from the advice tendered by the Law Department and the findings of the Civil Services (Appellate)
Tribunal;
(vi) The learned Government Pleader also defended the order dated 6-5-1975 granting exemption to the respondents with the submis--sion that the appellants had no right to challenge the said order and there was no appeal against the same and they had no locus standi to question the same. According to the Government Pleader the exemption had been granted after due consideration and was thus unexceptional. With these submissions, he prayed for the dismissal of this appeal.
21. Ch. Riasat Ali, the learned counsel appearing for some of the respondents Lawyer Magistrates also supported the Government Pleader-as to the retrospective operation of rule 10 of 1964 Rules.
He placed reliance upon clause (b) of rule 10 according to which the Government has been clearly empowered to assign suitable seniority to the Respondents. He submitted that the demand for absorption in service remained pending for decision with the Government for many years. The case came up for consideration before the Provincial Government for a number of times. At least at three times, it was. Observed that the appellants be assigned seniority from the dates of their appointments. He also submitted that rule 10 in terms was retrospective in operation. It was subject to rule 8 only which stood relaxed in their favour by the order passed by the Government on 5-7- 1975. According to the learned counsel the absorp--tion had different connotation than appointment to the service. He submitted that the absorption was akin to merger/integration as done under West Pakistan Government Integration Circular dated 25-11-1955. He also referred to section 7 of the Punjab Civil Servants' Act, 1974 which dealt with seniority and provided that the seniority was to be regulated in the prescribed manner i.e. By rules. He relied upon PLD 1976 SC 99; PLD 1970 SC 279 and PLD 1974 Lah. 193 to contend that the right of seniority was never protected by the Constitution and was not justiciable. He too argued that after the Notification of the Punjab Civil Servants (Change in Nomen--clature of Services and Abolition of Classes) Rules, 1974 on 5-7- 1974, all the services stood abolished and it is "the appointment in the grade" which was to regulate the seniority of the appellants vis-a-vis the respondents Lawyer Magistrates. He pointed out that rule 5 of the aforesaid Rules abolished all classes of service and rule 4 appointed all such persons to the respective "Punjab Unified Grade", of course, subject to existing inter se seniority positions.
Rule 6 specified the unified grade and a chart of classes, viz. Class I and Class 11 and grades comparable thereto. According to rule 3, references to the service (consistent with the subject and context) were to be considered as references to the "Punjab Unified Grades". Thus ,according to the learned counsel, it is the seniority in the grade which mattered. The learned counsel also reiterated the argument advanced by the Government Pleader that this Tribunal was not competent to go behind the findings already arrived at by the Civil Services (Appellate) Tribunal which was not a Departmental Authority. He also pointed out- that the decision of the Departmental Authority was duly supported by the advice of the Public Service Commission. He too pressed the objection as to the limitation and placed reliance upon PLD 1969 SC 583 according to which the limitation commenced from the date of knowledge. According to him the appellants came to know about the order dated 24th of December, 1976 immediately after passing of the same and thus the appeal was barred by time. He also pressed for the rejection of this appeal.
22. The learned counsel for the appellants in reply submitted that the absorption in service and assigning of suitable seniority were inseparably connected issues and from the arguments of the appellants nothing could be brought out to show that absorption was different from `the appointment to the service'. He also submitted that this being the appellate proceedings the argument that seniority was vested right or otherwise was not of any material consequence. He also argued that some of the appellants were appointed through initial recruitment much earlier than 24-12-1966 and thus they had a right of seniority over the Lawyer Magistrates. According to the learned counsel the decision of the Government allowing the absorption of the respondents was taken for the first time on 27-6-1961. He also submitted that the Governor of West Pakistan had passed the order finally approving the absorption of the appellants with the concurrence of the Public Service commission on 1-8-1966. Thus the respondents could not be validly appointed to the service from a date earlier than the above, parti--cularly without consulting the Public Service Commission. He accordingly pressed for the acceptance of this appeal.
23. We have heard the parties at length, perused the record and have given careful consideration to the respective contentions presented before us. In the first instance, we find that points Nos. (i) and (vi) urged by the appellant stand already concluded by the judgment of the Punjab Civil Services (Appellate) Tribunal between the same parties-reported as 1972 PLC (C. S. T.)
64. Their observations with regard to point afore--mentioned as it appears at pages 72, 73, 75, 76 and 77, are to the following effect: "Point No. (i).-This rule empowered the Governor of West Pakistan to absorb persons specified in clause 10(a)(i) and Lawyer Magistrates under clause (b) of rule 10 to assign the persons so absorbed suitable seniority in the service, which shall not in any case be earlier than the date of their appointment it the respective posts specified in clause (a). This rule, therefore, clearly authorises absorption of Lawyer Magistrates from the date of their appointment and was expressly retrospective in operation giving power to the Governor to assign suitable seniority, which was not to be earlier than the date of appointment as Lawyer Magistrate. In the interpretation of this rule, we agree with the conclusion of S. O. 5, dated 2-10-1968." (page 72)
"With regard to the second objection, it is true that a person is entitled to claim seniority in a service from the date of membership of the service, but here the question is not of assignment of seniority from the date of absorption in service, but as to the suitability of the date of absorption, which the Governor has the power to fix under rule 10(b). The Governor has to decide from what date they should be deemed to have been absorbed and this is precisely the question before us." (pages 75- 76)
"It is true that the normal rule is to reckon seniority from the date of entry into the service but this question is irrelevant under rule 10(b), which clearly and unambiguously gives power to the Provincial Government to assign seniority rot earlier than the date of appoint--ment. 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 circumstances and facts of the case?" (page 77)
"Point No. (vi).-He also referred us to the case of Mr. M. N. Rizvi, to contend that before induction into the service, a person is not entitled to claim a right of seniority and certainly not from a date earlier than his induction. To this the answer is that rule 10(b) expressly gives the power to the Government." (page 73)
"The decision in Rizvi's case proceeds on its own facts. That was a decision as to right of seniority to be claimed from the date of membership of the service. The claim here is that they should have been assigned seniority from the date of appointment as Lawyer Magistrates or at least from the date of Integration." (page 76)
"A reference to Mr. Rizvi case is also inappropriate as it proceeds on its own facts wherein it was held that seniority could only be claimed from the date of absorption in service. The Lawyer Magistrates also claim seniority from the date of absorption in service. The question in dispute is what should be the date from which they should be absorbed. Reference to Mr. Rizvi's case is thus irrelevant." (page 77)
24. The appellant challenged the above findings in writ petition before the Lahore High Court which abated on .3-2-1975, but though an appeal was competent under section 8 of the Punjab Service Tribunal Act, 1974, before this Tribunal Jafar Husain v. The Punjab Civil Service (Appellate) Tribunal etc. (1978 NLR 144), but none was filed by the appellant. In the result the findings in the decision dated 11-5-1971 (1972 PLC 64) became final against them. The Departmental Authority vide impugned order had merely accepted one of the alternatives suggested therein, therefore, the appellant could not be allowed to re-agitate the same controversy by this appeal preferred under section 4 of the Service Tribunal Act, 1974 in particular when the order appealed against has not been shown to fall beyond the scope of the Tribunal's order.
25. At this juncture, we may also notice the other part of the objection of the appellants that the order passed in pursuance of 1964 Rules could not be given retrospective effect. It did not impress us. Since rule 10(b) of 1964 Rules had been held by the Civil Services (Appellate) Tribunal to empower the Governor to assign any suitable date not earlier than the date of the appointments of Lawyer Magistrates, therefore, the order was immune from any such objection. We also uphold the opinion of the Punjab Law Department in this regard contained in their latest advice dated 5-6- 1973. Thus in our opinion, the Departmental Authority was abundantly justified e to follow the same.
Even otherwise, the view finds an independent support from the following observations of the Lahore High Court in case reported as PLD 1978 Lah. 738 which is based upon the dictum of Supreme Court of Pakistan PLD 1970 SC 146(1): "One of the accepted principles regarding the application of a Notifica--tion and the Statute is that it is always prospective, however, it is open to the Legislature to make it is retrospective, but that intention had to be express. Reference in this connection be made to Muhammad Akhtar Hussain v.
Government of West Pakistan wherein it had been observed:- "it is well settled that legislation may be made both prospectively and retrospectively but normally legislation which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights unless the Legislature has used express words in that behalf or such an intention necessarily flows from the language of the Statute. There are express words in the Ordinance XLI of 1963, giving it retrospective effect. By saying that the Rules of 1943 shall be deemed to have been repealed `with effect on and from the first day of January, 1946' the Ordinance made its intention abun--dantly clear and there could be no room for doubt that the repeal was being made with retrospective effect."
26. In this context, we may also notice the plea of the appellants founded on the decision in Mr. M.
N. Rizvi's case. The same had also been duly considered and distinguished by the Civil Services (Appellate) Tribunal. It may also be observed that late Mr. Justice S. A. Mahmood, was party to both the decisions, i.e. In Writ Petition No. 261 of 1958, In re: M. N. Rizvi v. The Province of West Pakistan and also in the decision reported as 1972 PLC (C. S. T.) 64.
27. 'The endeavour of the appellant to reassert the same objection was futile as the views already expressed by us hold good qua this part of the objections. Government has the power to induct the appellant into service from the date of his appointment, although we are clearly of the opinion that the order dated 11-5-1971 in 1972 PLC (C.S.T.).64 was not appealable under section 4 of Punjab Service Tribunals Act but even if it were so the principles of res judicata also debar the re-opening of this issue which had been finally ad judicated upon between the same parties by a Court of competent jurisdiction.
28. Even on merits, we respectfully agree with the findings of the Civil Services (Appellate) Tribunal reproduced in the earlier part of the judgment. The respondent Lawyer Magistrates were appointed against permanent posts and were confirmed before their absorption in the P. C. S. Service. In contrast Mr. Rizvi was appointed on purely temporary basis against a non-pensionable post and his services were liable to termination at two months' notice by either side. He was not confirmed during the period in dispute. In the case of Mr. Rizvi the precise question was whether he had a right to be inducted into service w. e. f. 1947 and in the case in hand the precise issue is whether the Government had the power to assign the seniority to the appellants from the date of their appointments as Lawyer Magistrates by way of absorption. Evidently, the issues involved in. Both the cases were widely different. Thus we cannot apply the conclusions arrived at in Mr. M. N. Rizvi's case to the facts of this case. The aforesaid case is clearly distinguishable.
29. We accordingly hold that the Government had the power to absorb the appellants from a date earlier than the one on which the 1964 Rules were enforced.
30. This takes us to point No. (iv) that Lawyer Magistrates have all through been considered as separate entity. In cur view nothing turned upon the same. But the fact remains that they have always been in the same grade and have been performing the similar functions rather frequently the same functions which were assigned to the P. C. S. Officers. Reliance was placed on this behalf in Items Nos. 1 and 3 appearing in Appendix to 1964 Pay Revision Rules to show that they were equated with P. C. S. In the matter of grade of Pay also. Thus the argument is of little consequence.
31. Similarly, we are also inclined to accept the contention of the learned Government Pleader that necessity to create the supernumerary posts was only in a case where the salary was to be paid. In a case involving seniority only, the creation of the post did not appear to be an indispensable requirement.
32. We are also inclined to agree with the respondent that absorption to service was more akin. To integration /merger into the service than the appointment to the service. The principle of merger/integration was for the first time applied by the former West Pakistan Government. Vide paras 14 to 16 of the Integration Circular dated 25-11-1955, according to which the continuous officiation in the grade formed the basis for post-- integration seniority. It was common case that the nature of the duties performed and the grade held by the parties arraigned before us were identical. Some precedents were there where the persons from other services, as specified at page 74 of 1972 PLC (C. S. T.) 64 i.e. The decision of the Punjab Civil Services (Appellate) Tribunal holding comparable grades were integrated into W. P. P. C. S. With the benefit of past service.
33. The principle came to acquire the statutory backing on 5-7-1974 when the (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974 were framed under the Punjab Civil Servants Act, 1974, according to which F reference to various "Classes of Service" has to be construed as reference to the "Unified Grades". The grade rather than membership of service became more relevant for fixing the seniority thereafter. In this view of the matters the seniority assigned to the respondent was unassailable.
34. Points Nos. (ii) and (iii) based upon the non-compliance of rules 8 and 13 of the West Pakistan Civil Services (Executive Branch) Rules are equally of no avail to the appellants inasmuch as the requirements of the rules were relaxed by the Competent Authority vide its order dated 5th of July, 1975. The aforesaid order being an independent and distinct order was required to be challenged before us by a separate appeal. No appeal having been preferred within the prescribed period against the same, the appellants were precluded to challenge it in the present proceedings.
35. In our view the appellants have no locus standi to challenge the same. The appellants have not been able to show to us as to how they could be treated as aggrieved persons against the same.
The order granting the relaxation in favour of the respondents Lawyer Magistrates under rule 13 of the said Rules, was in no way co-related to order dated 24-12-1976 passed under rule 10. On our enquiry, the learned counsel for the appellants had to concede that if the seniority of the respondents were to be fixed below the appellants they had no grievance against the order granting relaxation. But his case appeared to be that since the seniority of the appellants had been fixed below the Lawyer Magistrates, therefore, they were entitled to assail the same. We do not feel impressed with the contention which is manifestly untenable. In our view the two orders are separate and independent and have to be treated as such, Thus in our opinion the appellants had not locus standi to to challenge the order in question. Moreover, no appeal having been preferred within the prescribed period against the same, the appellants were precluded to challenge it in the present proceedings. Similarly the objection of the appellant against the vires of rule 13 being inconsistent with section. 5 read with section 23 of the Punjab Civil Servants' Act- too had little merit. Section 5 in terms clearly authorised the matter regarding probation, Departmental Examination and Training to be governed by the rules. Since the relaxation of rule 8 had been granted to the appellants in pursuance to rule 13, thus it could not be said to have contravened any clause of section 5. In fact, the appellants have not been able to show to us that as to how order dated 5-7-1975 offended against section 5. Likewise, the arguments based on section 23 of the Act, which was attracted only if the rule imgugned was shown to be inconsistent with the provision-- of the Act, was wholly without substance. We, therefore, repel this contention of the appellant.
36. As regards the protection claimed by the appellants with regard to their existing seniority (point No. (v) in our view Article 234 of the constitution simply authorised the continuance in office of the members of I the service in Pakistan who were already in service on the day the Constitution of Pakistan of 1962 was enforced. The provision itself was subject to the Constitution and law. It is wrong to read the aforesaid provision in the matter canvassed by the appellants. The aforesaid Article did not prohibit the change in the terms and conditions which was more precisely dealt with by provisions of Article 178 (3) which restricted the protection to the conditions of service relating to Superannuation and remunerations only. As held by the Supreme Court of Pakistan in PLD 1970 SC 146 Article 234 was not intended to guarantee anything more than continuance of the existing state of affairs. The seniority was none of the terms and conditions protected by the Constitution. It was never specified in the Constitution and for this reason writ was refused in the following cases:-
(1) PLD 1966 SC 99(2) PLD 1970 SC 279
(3) PLD 1974 Lah. 193 We are, therefore, not inclined to accept this contention of the appellant. Similarly, the absence of any provision in 1930 Rules, was of little con--sequence. Section 7 of the Punjab Civil Servants' Act, 1974 laid down that the seniority was to be regulated in the prescribed manner, i.e. By the relevant Rules. The requisite provision had been made on 7-12-1964 in the W. P. P. C. S. (E. B.) Rules and the order having been passed in 1976 was duly supported by the provisions of law.
37. Similarly the objection grounded on section 22 of the Punjab Civil Servants' Act, sounded rather misconceived. Section 22 empowers the Governor to deal with the cases of the Civil Servants as it may appear to him to be just and equitable and the proviso limited the power of the Governor in such cases to the extent that the same shall not be exercised against a Civil Servant in any manner less favourable to him than provided by this Act and such Rules. In the first instance, the proviso applies to the case of a civil servant whose case is dealt with by the Governor under the main clause and while dealing with the case, the Governor's powers were confined to the extent that it could not be exercised to the disadvantage of a civil servant concerned. As such, the protection provided in the proviso was to the case of the respondents themselves whose case had been dealt with under the main clause. Thus the case of the appellant was not covered by the proviso which was not attracted in their case. In our view, the arguments advanced by the appellants are based on misreading of the relevant clause which was not applicable to their case.
38. The objection of the appellant that the power in this behalf had been exercised in a mala fide manner by the Government, have also remained unsubstantiated as nothing was shown to establish the same.
39. Even on the ground of limitation we find that the appeal is barred by time. The impugned Notification having been issued on 24-12-1976, no representation was contemplated under section 21 of the Punjab Civil Servants Act as there was no authority higher than the Provincial Government in the Province. Admittedly, there was no right of appeal o review created by any rule. The representation filed on 3-2-1977 thus could not be availed for extending the period of limitation which was one month from the date of the order absorbing the respondents as Lawyer Magistrates. In our view, the Seniority List published in October, 1977 did not extend the period of limitation. There is great deal of merit in the contention of the respondents that the limitation commenced from the dale of knowledge of the order of absorption. It is not possible for us to assume that the appellants did not come to know about- the order for such a long time. In fact, there is no application for the condonation of delay.
40. In view of our findings above, the objection of the respondents as to the non-compliance of proviso to section 4 does not arise.
41. Consequently, the appeal fails and is dismissed with costs.