' JUSTICE (R.) MUHAMMAD JAHANGIR ARSHAD, (CHAIRMAN)--- As common questions of law and of facts are involved in all the aforesaid appeals, therefore the same are being disposed of through this single order.
2. The facts in brief are that in order to regularize the services of 214 Assistant Engineers working in different Departments of Government of the Punjab on ad hoc basis upto 17-1-1989, a summary was submitted to worthy Chief Minister, Punjab with the following proposals:--- "6. In view of the above provision, it is proposed that:
(a) The posts of Assistant Engineers mentioned at para 2 in different Departments may be taken out of the purview of the Commission under rule 5 of the Punjab Public Service Commission (Functions) Rules, 1978.
(b) 214 Assistant Engineers working in different Departments of the Punjab Government under different designations on ad hoc basis who are listed in Annexure-II, may be appointed on regular basis w.e.f, 17-1-1989 relaxation of Rule 4(8) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 subject to the condition that they possess the qualifications prescribed for the post held by them.
(c) The conditions of citizenship, domicile, physical fitness and verification of character and antecedents laid down in rules 9, 20, 21 and 21-A of the rules ibid may be looked into and dealt with according to the rules by the concerned Administrative Departments.
(d) Selectees of the Punjab Public Service Commission may, as a group, be assigned seniority over the ad hoc appointees, Seniority of the latter inter se may be determined on the basis of their total continuous length of ad hoc service.
(7) Approval of the Chief Minister is sought to the proposals at para 6."
3. The said summary was accordingly approved by the Chief Minister, Punjab as follows:--- "C.M. Has seen and has approved the proposal made in para 6.
(Sd.)
4. In line with the above approval of summary by the worthy Chief Minister, Punjab, directive dated 25-1-1989 was issued by the Government of the Punjab, Service and General Administration Department for further necessary action regarding regularization of services of those ad hoc appointees/appellants and thereafter notification dated 29-6-1989 was issued whereby all the Assistant Engineers appointed on ad hoc basis etc. Were regularized with effect from 17-1-1989 in BS-17 subject to the terms and conditions made therein and Condition No,1 of the same was as follows:--- "The selectees of the Punjab Public Service Commission shall, as a group, be assigned seniority over the ad hoc appointees. Seniority of the ad hoc appointees, inter se shall be determined on the basis of their continuous length of ad hoc service."
5. In the above noted summary reference to the selectees of the Punjab Public Service Commission means respondents Nos.4 to 21 who were also recommended by Punjab Public Service Commission after following regular codal formalities for appointment as Assistant Engineers in Communication and Works Department and were also appointed as such through offers of appointment dated 25-2-1989, 25-5-1989 and 29-6-1989. The real dispute between the parties arose on the publication of final seniority list of C&W Department as notified on 27-5-2002 whereby the said respondents were shown as senior to the appellants i.e, at Serial Nos.203 to 221 whereas the appellants were shown junior to the respondents i.e, from Serial No,222 onward. Habibul-Haq (Appellant in Service Appeal No 3231 of 2007) feeling aggrieved against the said final seniority list filed by departmental representation which was dismissed by the Secretary Communication & Works Department, Government of the Punjab on 12-6-2007. Against the above noted order of the competent authority, the appellant filed departmental appeal on 13-7-2007 before the Chief Secretary, Punjab but as the same was not decided within the statutory period, hence the appellants were compelled to file these appeals without waiting for the decision of the departmental appeals. However, vide order dated 20-2-2009, this Tribunal directed the Chief Secretary, Punjab to decide the same and pursuant to the said direction of this Tribunal, the said departmental appeal was finally decided and rejected on 20-7-2009. Hence the present appeals.
6. As the appellate order was passed during the pendency of these appeals, therefore the appellants were allowed to amend the memorandum of appeal by way of challenging the order of appellate authority and the amended appeal was filed on 24-7-2009 whereafter arguments in these appeals were heard on 27-7-2009, 31-7-2009,2-9-2009 and finally decided on 3-9-2009 in the presence of the learned counsel for the parties.
7 The sole question upon which hinges the fate of these appeals is whether appellants who were admittedly selected on ad hoc basis as a result of scrutiny by Selection Committee on 30-9-1989 could be declared junior to private respondents despite their selection on 25-2-1989, 25-5-1989 and 26-9-1989 i.e, subsequent to the appointment of the appellants in terms of the above noted contents of the summary and its approval by the Chief Minister, Punjab. The contention of the learned counsel for the appellant was that since the selection/joining of the appellants was prior in time in the Department than that of contesting respondents, therefore they were to be declared senior to the respondents notwithstanding the fact that their date of appointment as regular Engineers was the same as that of the contesting respondents, therefore they were wrongly shown junior in the final seniority list and that the summary as approved by the worthy Chief Minister, Punjab was misconstrued for giving seniority to the 'contesting respondents. The learned counsel for the appellants in order to strengthen his arguments has placed reliance on Rule 8(1)(a) and 2 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, to argue that it is an established principle of law that persons selected earlier are senior to the persons selected later.
Further contention is that as the date of continuous service of the appellants is admittedly 17-1- 1989 whereas the date of continuous appointment of private respondents i.e, selectees by the Punjab Public Service Commission fell between June, 1989 to July, 1989 and further as the services of the appellants were regularized with effect from 17-1-1989 through the notification dated 29-6- 1989, therefore they could not be denied seniority from 17-1-1989 by misinterpreting the above noted summary of worthy Chief Minister, Punjab while granting seniority to the respondents. The learned counsel for the appellants has also placed reliance on para.4 of N.-W.F.P. (Regularization of Services) Act and para 5 of Sindh Civil Servants (Regularization of Ad hoc Appointment) Act to canvass that right of seniority in those two provinces to the ad hoc appointees on regularization was given from the date of actual regularization. The learned counsel for the appellants continuing his arguments by placing reliance on various judgments of the apex Court has argued that the seniority of the appellants should have been from the date of joining service and not from any subsequent date. Some of these judgments are reported as 1993 SCMR 1326, 1993 SCMR 1323, 1982 PLC (C.S.) 242, and PLD 1970 SC 203. The learned counsel for the appellants has lastly argued that para 5 of the summary submitted and approved by the Chief Minister was self-operative being complete and self-contained and only impression from the reading of the said para, one can gather was that either it said nothing about placing the appellants as junior in the list or directing that the contesting respondents be considered as senior to them and thus reliance on the said summary by considering the appellants as junior was misplaced and inappropriate.
8. Conversely Mr. Ijaz Qutab Advocate and Mrs. Rizwana Anjum Mufti Advocate, learned counsel for the contesting respondents argued that as the appellants never made any representation before the higher authorities against the final seniority list, therefore, in terms of section 21(2) of the Punjab Civil Servants Act, 1974, as well as section 4 of Punjab Service Tribunals Act, 1974 these appeals were not competent. In support of their contention they have placed reliance on the case reported as PLD 1981 SC 612. Further argument is that in view of the Condition No,1 of the appointment letter/notification dated 29-6-1989 reproduced above in para 4 laying down that the selectees of the Punjab Public Service Commission shall be consigned seniority over the ad hoc appointees (appellants) and the said condition being in force since 26-6-1989 and never challenged by the contesting respondents, therefore binding on them and they were now estopped from taking the plea that such condition could not be enforced being in violation of the provisions contained in Punjab Civil Servants Act, 1974 relating to question of promotion etc. The learned counsel for the respondents have further argued that in case the said condition if not admitted to be binding on the appellants, even then in terms of rule 8(1)(a) of Punjab Civil Servants (Appointment & Conditions of Service), Rules, 1974 was fully attracted in the present case and in terms of the said rule where the appointment is by initial recruitment, the seniority is to be determined according to the order of merit assigned by the competent authority and since in the present case the competent authority while issuing notification/ appointment letter of the appellants in express terms placed them junior to the appellants, therefore the appellants could not at this stage avoid either the above noted Condition No,1 or claim seniority in contravention of the above noted rule.
Further argument is that prior to the present final seniority list, two seniority lists, one in 1997 and second in 1999 were issued showing the same position with regard to seniority of the parties but the appellants neither agitated nor did challenge the same and kept mum till the present list was notified bn 27-5-2002. The learned counsel for the respondents concluded arguments by submitting that contesting respondents were appointed through regular procedure adopted under the Punjab Public Service Commission (Function) Rules, 1978 whereas the appellants were regularized by the Chief Minister, Punjab in an unusual manner by relaxing rule of seeking advice from the Punjab Public Service Commission under the said Rules, therefore they were rightly placed junior to the contesting respondents, firstly by the Chief Minister, Punjab while according approval of the summary and then by the Government by issuing notification/appointment letter of the appellants who were thus in knowledge of the fact that they were being placed junior to the contesting respondents from day first i.e, issuance of their appointment letter.
9. Exercising his right of reply Mr. Masud Ahmad Riaz Advocate, counsel for the appellants repeated his earlier arguments and submitted that as in terms of Condition No,4, of above noted appointment letter dated 29-6-1989, the services of the appellants were declared to be governed by the Punjab Communication & Works Department (Engineering Posts, Qualifications and Conditions for Recruitment) Rules, 1985, Punjab Civil Servants Act, 1974, Punjab Civil Servants (E&D)
Rules, 1975 and all other orders, rules, regulations and instructions etc. As are issued by the Provincial Government, therefore Condition No,1 noted above declaring/placing the respondents as senior would be rendered ineffective being in violation of the Punjab Civil Servants Act, 1974 read with Punjab Civil Servants (E&D) Rules, 1975 which accept the rights of the appellants being senior from the date of their original joining of the department and therefore despite the above Condition No,1 in the notification/appointment letter, the appellants could not be non-suited on the principle of estoppel, especially when it was an admitted principle of law that there was no estoppel against law as held by the honourable Supreme Court of Pakistan in the case reported as PLD 1979 SC 32 and 2008 PLC (C.S.) 995. It was also contended by the learned counsel for the appellants that since the above noted clause was illegal being in violation of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1975, hence the same was not binding on the appellant as held by the honourable Supreme Court of Pakistan in the case reported as 1998 SCMR 1338. Further argument is that as the said clause amounted to contracting out the same was not a valid condition as held by the honourable Supreme Court of Pakistan in the case reported as 1999 SCMR 41.
10. I have carefully considered the arguments advanced from both sides and have also perused the record.
11. For the determination of these appeals, the following important points need resolution by this Tribunal:
(i) What was the aim and object of the summary dated 13-4-1989 submitted to the worthy Chief Minister, Punjab?
(ii) What was proposed through the said summary and approved by the worthy Chief Minister?
(iii) What is the legal implication of Condition No,1 reproduced above included in the notification/appointment letter of the appellant dated 29-6-1989?
(iv) Whether Condition No,1 noted above was subservient to Condition No,4 of the same notification?
(v) What was the wisdom in para 6(d) of the proposal in the said summary as well as Condition No,1 of the said notification seeking to assign seniority to the contesting respondents over the appellants?
(vi) Whether Condition No,1 noted above could not be used as an estoppel against the appellants or they may be non-suited on this point alone?
12. The answer to the first point noted above is not only very simple, but leaves no doubt in one's mind that it was aimed at relieving the appellants from the rigors of caudal formalities by way of selection after formalities by the Punjab Public Service Commission for the purpose of regularization of their services keeping in view their ad hoc appointments since 1979 and thus to save them from being possibly dropped by the Punjab Public Service Commission on the ground of their failure to pass for their poor performance or not coming to the standard of Punjab Public Service Commission after rendering service of more than ten years.
13. Similarly answer to Question No,(ii) is not difficult from its bare perusal which makes one to be sure. Through the said summary (paras "c" and "d"), it was proposed in unequivocal words that selectees of the Punjab Public Service Commission (contesting respondents) may, as a group, be assigned seniority over the ad hoc appointees who were definitely no other than the appellants and the said summary as it was proposed , was approved by the worthy Chief Minister, therefore, I am not inclined to agree with the contention of the learned counsel for the appellants that in fact through para 5 of the said summary, different proposal was submitted whereby only those selectees of Punjab Public Service Commission were recommended to be placed senior who were selected before 17-1-1989 and the proposal and its approval be read in context with the above noted para No,5 whereas in fact through Para 5, no proposal was made, rather there was a suggestion for the determination of seniority vis-a-vis ad hoc appointees and the selectees and that para was nothing except the general part involving issues and points of consideration within the meaning of para 4.16 of the Manual of Secretariat Instructions issued by the Government of the Punjab in terms of Rule 10(1) of the Punjab Government Rules of Business, 1974 and according to its Manual of Secretariat Instructions, 1988 which is reproduced below:--- "4.16 A summary for the Cabinet prepared in accordance with rule 24, of the Rules of Business, 1974 shall be printed and 50 copies furnished to the Cabinet Wing of S&GA Department. The date on which it is submitted should be indicated at the end of the Summary, which should not normally exceed two pages. The Summary shall be in the following form:---.
(i) Heading "Summary for the Cabinet".
(ii) Minister in Charge (if any).
(iii) Contents:
(a) History and background of the case with relevant facts.
(b) Issues involved.
(c) Point for consideration.
(d) Views of the Department and of any other Department concerned.
(e) "Specific recommendations with reasons."
' The above noted para further indicates that in terms of (e) specific recommendations have to be made with reasons and to my view what was recommended in para 6(d) of the summary was the requirement under the said instructions and the same was approved by the worthy Chief Minister.
14. The above noted finding leads me to Point (iii) noted above. The notification/appointment letter dated 29-6-1989 was issued consequent upon the approval of the Chief Minister, Punjab in the summary and Condition No,1 was inserted in the said notification in terms of what was approved by the Chief Minister, Punjab agreeing to the proposal that the selectees by the Punjab Public Service Commission (contesting respondents) be placed senior over the ad hoc appointees (appellants). The Chief Minister, Punjab being the ultimate authority under the law was competent to insert condition and thus such condition has got statutory force in terms of Rule 3(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which is reproduced below:--- "3(1) Appointment 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:--- ' Provided that there as a result of retrenchment in, or reorganization of a Government Department/office or an autonomous or semi-autonomous organization set by the Government, certain posts or cadres are abolished and Government decides, by special order, to absorb persons rendered surplus in consequence thereof, such persons may be absorbed against such posts in such manner and on such terms and conditions as may be determined by the Government.
' Provided that absorption of such persons shall be made on the recommendations of the Punjab Public Service Commission in case of posts carrying BS-16 and above as in case of other posts on the recommendations of the Committee constituted by the Chief Minister or any officer authorized by him in that behalf: ' Provided further that for purposes of seniority, persons absorbed as above shall be treated as having been appointed by initial recruitment with effect from the date they take over charge in the absorbing functional unit/cadre and further in terms of Rule 23 of the aforesaid rules Chief Minister being the competent authority could relax any one of these rules and therefore the condition so inserted in the said notification was correctly and rightly inserted under the direction of the competent authority i.e, Chief Minister and the appellants accepted this condition and continued performing their duties till the disputed seniority list was notified therefore the said condition is held as a legal and valid one binding on the appellants.
15. In view of the answer to point raised noted above, point (iv) is answered in negative and it is held that Condition No,1 was a self-explanatory and independent condition and had nothing to do with the Condition No,4 which had become operative only after the acceptance as contained in the said notification by the appellants and entering into service as regular employee of Government of the Punjab. It was thereafter that the terms of ad hoc appointees were to be governed by the law and rules mentioned in Condition No,4.
16. In terms of Point (v), suffice would be to say that the wisdom behind proposal and its acceptance in para..6(d) of the summary was that as according to the record, recommendation by the Punjab Public Service Commission with regard to contesting respondents had been received to the concerned Department prior to the issuance of regularization order of the appellants dated 29-6-1989, therefore it was thought appropriate to give them seniority over the ad hoc appointees (appellants) who was being regularized in service by way of relaxation of relevant rule i.e, Rule 5 of the Punjab Public Service Commission (Function) Rules, 1978 as against the contesting respondents who had undergone a lengthy process of codal formalities through the Punjab Public Service Commission, further as the selectees of the Punjab Public Service Commission were to be assigned seniority as a group over the ad hoc appointees (appellants), therefore it was thought further appropriate to give them priority over the appellants who were not only originally appointed on ad hoc basis but also without the intervention of the Punjab Public Service Commission and their regularization was nothing but an ex gratia in the wake of Ex-Prime Minister's Five Point Programme for providing jobs to the unemployed Engineers without any undertaking by the competent authority for regularization of their services in a such-like manner, rather in one of the offers of appointment made on 7-9-1988 to them through notification dated 29-6-1989 it was specifically provided in Conditions Nos.2 and 3 that their regular appointment to the post would be by the Government on selection by the Punjab Public Service Commission and further the said appointment would not confer any right for regular appointment or selection to the same post nor the service will be counted towards seniority. It is therefore, concluded that the wisdom behind para 6(d) of the proposal in the aforesaid summary was to make it clear at the very beginning that the appellant would neither claim any seniority on the basis of their ad hoc service nor the said service would confer any right for regular appointment, and the regularization of their appointment without the intervention of the Punjab Public Service Commission in terms of above noted condition was being made in order to protect their career and further to save them from being rendered jobless in case of their failure to compete before the Punjab Public Service Commission.
17. With regard to Point (vi) the learned counsel for the appellants on the basis of law declared by the Honourable Supreme Court of Pakistan in PLD 1979 SC 32 and 2008 PLC (C.S.) 995 has laid much stress by arguing that since in terms of Condition No,4 of the said notification, terms and conditions of the appellants were to be governed under the relevant rules/laws mentioned in the said Condition No,4 of the said notification and this condition talks of rules and laws and since there is no estoppel against law, therefore Condition No 1 despite having been accepted by the appellants cannot be used as an estoppel against the appellants. I am afraid the contention of the learned counsel for the appellants is sustainable for the simple reason that in view of the background as noted above with regard to submission of proposal its acceptance in the summary by the Chief Minister and incorporation of Condition No,1 in the said notification having a statutory force has to be enforced in its true spirit and by accepting such condition while joining service after regularization, the appellant would definitely be governed by the principle of estoppel as their conduct amounted to acting upon the said condition to their detriment, by joining the service after regularization and further after going through the said terms and conditions having binding effect on them. The case-law relied upon by the learned counsel for the appellants to show that acceptance of such condition on their part would neither amount to representation nor estoppel, is not applicable to the present case, rather proceeds on distinguishable facts. Conversely I am satisfied that the appellants while joining service on regular basis through the above noted appointment letter/notification by their conduct expressly as well as impliedly, accepted the said condition and are therefore estopped from challenging the same on the ground that the same being repugnant to Condition No,4 of the said notification, hence not binding, was not correct position taken by the appellants, rather they were hit by the doctrine of estoppel as contained in Article 115 of the Qanun-e-Shahadat Order.
18. The above noted discussion/analysis and conclusion leads me to say something about case- law cited by the learned counsel for the appellants. The main point canvassed by the learned counsel for the appellants with reference to the case-law is that as in terms of Punjab Civil Servants Act, 1974, the seniority is to be determined with reference to the provisions contained in sections 7 and 8 of the said Act read with Rule 8 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 which provides that seniority to be considered with reference to date of their continuous appointment in the grade and as the appointment of the appellants -was prior to the contesting respondents, therefore they were wrongly placed junior in the seniority list to the respondent. Prima facie the contention of the learned counsel for the appellants holds field, but in view of the peculiar facts and circumstances of the case, I cannot subscribe views of the learned counsel for the appellants for various reasons. Firstly appointment of the appellants though was prior in time to the contesting respondents, yet as noted above, was ad hoc and their service during ad hoc period could not be counted at the time of regularization. Secondly they were supposed to have their services regularized through the codal formalities of Punjab Public Service Commission which arena they never entered. Thirdly they were at the very beginning in the knowledge that their ad hoc appointment would not confer any right for regular appointment.
Fourthly even their ad hoc appointment was without any merit etc, rather it was, as held above, an ex gratia in the wake of Ex-Prime Minister's Five Point Programme for providing jobs to the unemployed Engineers and it is very clear from the record on what considerations they were given ad hoc appointment. Fifthly much before the issuance of notification/ appointment letter they were in the knowledge that the Chief Minister had approved the summary of regularization of their service by further condition of placing them junior to the selectees of the Punjab Public Service Commission i.e, contesting respondents. Last but not the least, they accepted and joined the regularized service with full knowledge of Condition No,1 in their appointment letter that the competent authority had placed an embargo on their seniority qua the contesting respondents and despite the said condition they accepted the appointment letter and joined service on regular basis and remained silent for a considerable period of time.
19. As against the above, I feel that the contesting respondents were appointed on regular basis after proper recommendation by the Punjab Public Service Commission and their placement in the seniority list as senior to the appellants was comprehendible by a person of ordinary prudence and further strictly in line with Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 as later on elaborated and interpreted by the Honourable Supreme Court in the case reported as PLD 1997 SC 835 "laying down the principle that appointment in various posts by Federal Government, Provincial Government, statutory bodies, Public authorities, either initial or ad hoc or regular basis without inviting applications and merits were in violation of Articles 18 and 2(a) of the Constitution of Islamic Republic of Pakistan, 1973. The above noted judgment of the Apex Court though later in time, yet spelt out the true spirit of Article 18 of the Constitution which was the part of the same on its inception in 1973. The contesting respondents were therefore rightly preferred in the matter of seniority qua the appellants.
20. The net result of the above discussion is that all these appeals have no force and the same are dismissed.