1. S. A. MAHMOOD (CHAIRMAN).-This is an appeal by Ch. Shaukat Ali, Settlement Tehsildar, under section 4 (1) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, whereby he claims seniority over Malik Maqbool Hussain Syed Taburrak Hussain Shah, Mian Manzoor Ahmad, Mehr Mohammad Bakhsh Sipra, Mr. Muhammad Nawaz Makhdum, Mr. Hakam Khan Baluch, Anwar Ali Cheema, Muhammad Ashraf Qamar, Mr. Abdul Majid Gondal, Ch. Shahbaz Khan, Mian Ahmad Mansoor, Ch. Abdul Rashid and Ch. Basins Ahmad Khalid, respondents 3-15 in the rank of Naib- Tehsildar. The appellant claims seniority ors the basis of rule 9 of the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 which came into force on 5-1-1963 and were made applicable to them by notification dated 29th June 1967.
2. On the 10th of April 1960, Ch. Shaukat Ali appellant was selected by the Commissioner, Multan Division as a Naib---Tehsildar candidate purely on ad hoe basis. His name was placed at serial No. 8 1n the order of merit. On thesame day were selected Malik Maqbool Hussain, Syed Taburrak Hussain Mr. Mansoor Ahmad and Mehr Muhammad Bakhsh respondent 3 to 6 as promotees, known as 'B' Class, and Mr. Muhammad Nawaz Makhdum, Mr. Hakam Khan, Ch. Shahbaz Khan, and Mian Ahmad Mansoor respondents 7, R, 12 and 13, who were also selected Naib-Tehsildar candidates as direct recruits, known as 'A' Class. Their selection was purely temporary. The order of, selection were made in the order in which their names appeared in the list, and their seniority was fixed accordingly, and as 'for 'B' Class candidates their seniority inter se shall be determined in accordance with the provisions of the new West Pakistan Naib-Tehsildari Service Rule under scrutiny with the Board of Revenue. The inter se seniority of 'B' Class candidates was directed to be fixed in accordance with same Naib-Tehsildari Service Rules under scrutiny. Unless there be a provision to the contrary in the said rules, the final order of seniority was to be determined between the 'A' and 'B' Class candidates so that a 'B' Class and act 'A--- and shall alternate, and whoever is first qualified will get the -first appointment, and thereafter in rotation.
3. Mr. Anwar Ali Cheema, Mr. Muhammad Ashraf Qamar and Mr. Abdul Majid Gondal respondents 9, 10 and 11 were selected by the Commissioner, Rawalpindi Division as Naib---Tehsildar candidates directly as 'A' Class recruits in a later selection made on 6-5-1-960 Ch. Abdul Rashid and Ch. Bashir Ahmad respondents Nos. 14 and 15 were similarly selected by Commissioners of Multan and Sargodha Divisions as directly recruited Naib-Tehsildar candidates ('A' Class) on 29th July 1960 and 15th April 1961. Thus the appellant and respondents Nos. 3, 8, 12 and 13 were selected on the same day by the Commissioner, 3-6 as promotees ('B' Class), and appellant and respondents 7, 8, 12 and 13 as direct recruits ('A' Class). Respon--dents 9, 10, 11, 14 and 15 were selected as 'A' Class candidates in three later selections.
4. The selection of Tehsildar and Naib-Tehsildar candidates by the Commissioners of various divisions was challenged by a writ petition in the High Court of West Pakistan and the selection was held to be invalid in July 1961. In order to validate the selection, the West Pakistan Validation of Naib---Tehsildar and Naib-Tehsildar Candidates Selection Ordinance VI of 1962 was enforced on 11th April 1962 validating the selection of Naib-Tehsildar and Naib-Tehsildar candidates made during 1960 and 1961. Section 4 of the Ordinance directed that the terms and conditions of service of those whose selection was validated by the Ordinance shall be such as may be specified by the Government. By a notification issued on 29th June 1967, it was directed that the persons whose selection was validated would be governed by the West Pakistan Tehsildari and Naib---Tehsildari Service Rules, 1962.
5. Sargodha Division was created as a new division in 1960. The appellant and respondents 3-15 were assigned to that division on the basis of their domicile.
6. After completing his training, the appellant was appointed as Naib-Tehsildar and took over on the 25th July 1962. He was made substantive provisional Naib-Tehsildar with effect from 17th January 1970. Respondents Nos. 3 to 6 were appointed as Naib-Tehsildar on 5-3-1956, 10-4-1960, 3-8-1960 and 3-6-1962, These are being treated as the dates of their continuous officiation.
7. In the former Punjab Province, the Punjab Tehsildari Service Rules, 1953 provided for selection and appointment of Naib---Tehsildars and Tehsildars through the Public Service Commission on the result of an examination. The West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 were notified on 5th January 1963. These rules were yet in a draft stage when the selections of the appellant and the respondents were made under the draft rules by the Commissioner.
8. The first seniority list of the parties as on 1-11-69 was circulated by the Commissioner, Sargodha Division on 14-11-69, but in the covering memorandum, it was mentioned that the position assigned in the list was subject to change, if necessary after final decision /clarification of the Board of Revenue regarding fixation of seniority with reference to passing of 'the departmental examination.
9. In this seniority list, the appellant was placed at serial No. 6 with Malik Maqbool Hussain and Syed Taburrak Hussain respondents 3-4 above him as Naib---Tehslldars, while the appellant was still shown as a candidate Mian Mansoor Ahmad Sipra and Muhammad Bakhsh were senior to him at Nos. 3 and 4, i. e. the respondents were all below him in the list of candidates. The next seniority list as on 1-1-1970 by which the appellant feels aggrieved, was circulated on 25th May 1970. In this list Malik Maqbool Hussain and Syed Taburrak Hussain respondents 3-4 were shown senior to the appellant as Naib Tehsildar. The appellant and the remain--ing respondents were all shown as Naib-Tehsildar candidates. The appellant was shown at No. 13 with the remaining respon--dents 5-15 above him at No. 2-12. It was explained in the covering memorandum that the tentative seniority list previously circulated had been amended in the light of the latest clarifi--cation received from the Board of Revenue and while preparing the revised tentative seniority list, the following principles were kept in view and observed'
(1) The seniority of both the direct recruits and promotees was counted from the date of their appointment to the service after completion of training and passing of departmental exa-- mination (rule 8).
(2) In case two or more direct recruits of the same batch had passed the departmental examination on the same date, the order of merit assigned by the Commissioner at the time of selection had been kept in view (rule 9 (1) (a) of West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962).
(3) In case of promotees, if two or more of them had passed a departmental examination on the same date; seniority had been determined with reference to their continuous service as Naib- Tehsildar after selection as such, and if that too was the same, the older officer was considered senior (rule 9 (1) (b)).
(4) A direct recruit had to take seniority from the date of appointment after completing training and passing departmental examination, while the promotees got seniority from the .date of continuous appointment after passing the departmental examination.
10. If a promotee completed the departments training and passed examination earlier, and got earlier appointment in the service before the completion of departmental training and passing of examination by direct recruits, he would become senior, even if the directs recruits are selected earlier.
11. As the seniority of the parties was revised in the revised seniority list in accordance with the dates of their passing the departmental examination on the principle stated in (4) above, its correctness and application has been contested before us. In this connection, it may be explained that the appellant did not clear all the six papers of the departmental examination until 30th January 1965 whereas all the respondents except Mr. Anwar Ali Cheema cleared the examination on 28th March 1964. Mr. Anwar Ali cleared the examination by sitting in the last paper in the Tehsildari Examination in March 1964, and his result was announced on 30th January 1965.
12. The question in issue in this case is whether under the 1962--Rules, which were applied to the case of the appellant and the respondents retrospectively in 1967, the passing of the departmental examination was necessary for entry into service and for the purpose of fixation of seniority, and whether it has any bearing on the question of seniority. The reason stated for modification of the original seniority list and the change in the order of seniority was that passing of the departmental examination was necessary before' Naib-Tehsildar candidates' could become members of the service so as to count their seniority in the service from that date. This view was based on rule 8.
13. For the determination of the above question, it is necessary to cite rules 8, 9 and 10 of the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962. These rules provide :-
8. Training and departmental examination.-A person selected for appointment to the service shall, before his appointment to the service, be required to complete successfully such training and pass such departmental examinations and produce such certificates within such period or in such number of attempts as may be prescribed by Government from time to time.
9. Seniority.-(1) The seniority inter se of the members of the service in the various grades thereof shall be determined-
(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Hoard of Revenue in the case of Tehsildars and by the Commis--sioner of the Division in the case of Naib-Tehsildars ; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection; and
(b) in the , case of members appointed otherwise, with reference to the dates of their continuous appointment therein; provided that if the date of continuous appointment in the case of two or more members of the service is the same the older official, if not junior to the younger official or officials, in the next below grade shall rank senior' to the younger official or officials.
14. Explanation I-If a junior official in a lower grade is selected to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade.
15. Explanation II-If a junior official in a lower grade is selected to a higher grade by superseding a senior official and sub--sequently that official is also selected, the official selected first shall be held senior to the official selected subsequently.
16. Explanation III-A junior official appointed to a higher grade shall be deemed to have superseded a senior officer only if both the junior and senior officers were considered for a higher grade and the junior officer was appointed in preference to the senior officers.
(2) The seniority in the various grades of the service of the members appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined :-
(a) In case both the official appointed by initial recruitment and the official 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 official appointed by initial recruitment and to the date of continuous appoint--ment/against such vacancy in the case of the official appointed otherwise provided that if the two dates are the same, the official appointed otherwise shall rank senior to the official appointed by initial recruitment;
(b) In case the official appointed by initial recruitment has been appointed against a substantive vacancy and the official appointed otherwise has been appointed against a temporary vacancy, the official appointed by initial recruitment shall rank senior to the official appointed otherwise; and
(c) in case the official appointed otherwise is appointed against a substantive vacancy and the official appointed by initial recruitment is appointed against a temporary vacancy, the official appointed otherwise shall rank senior to the official appointed by initial recruitment.
10. Probation.--(I) A person appointed to the service against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year if appointed otherwise.
17. Explanation.-Officiating service and. service spent on depu--tation to a corresponding or a higher post may be allowed to count towards the period of probation.
(2) If the work or conduct of a member of the service during the period of probation has been found to be unsatisfactory, the appointing authority may notwithstanding that the period of probation has not expired, dispense with his services, if he has been appointed by initial recruitment; and if he has been appointed otherwise, revert him to his former post, or if there be no such post, dispense with his services.
(3) On completion of the period of probation of a member of the service the appointing authority may, subject to provisions of sub-rule (4) confirm him in his appointment, or if his work or conduct has, in the opinion of such authority, not been satisfactory-
(i) in case has been appointed by initial recruitment, dispense with his services; or
(ii) in case he has been appointed otherwise, revert him to his former post, and if there be no such post, dispense with his services; or
(iii) Extend the period of probation by a period not exceeding three years in all in the case of persons appointed by initial recruitment, and two years in all, in the case of person recruited otherwise, and during or on the expiry of such period pass such orders as it could have passed during or on the expiry of the initial probationary period.
18. Explanation I-if no orders have been made by the day follow--ing the completion of the initial probationary period, the period of probation shall be deemed to have been extended.
19. Explanation II-If no orders have been made by the day on which the maximum period of probation expires, the pro--bationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended.
(4) No person shall be confirmed in the service unless he successfully completes such training and passes such. depart--mental examinations as may be prescribed by Government from time to time.
(5) If a member of the service fails to complete successfully any training or pass any departmental examination prescribed under sub-rule (4) within such period or in such number of attempts as may be prescribed by the Government, the appoint--ing authority may-
(a) in case he has been appointed by initial recruitment, dispense with his services; and
(b) in case he has been appointed otherwise, revert him to his former post, and if there be no such post, dispense with his services.
20. In these rules, while service is defined as the West Pakistan Tehsildari and Naib-Tehsildari service, the words `members of the service` are not defined. Because rule 8 provides that a person selected for appointment to the service shall before his appointment to the service, be required to complete success--fully such training and pass such departmental examination and produce such certificate within such period or in such number of attempts, as may be prescribed by Government from time to time, it has been inferred that before becoming a member of the service, it is necessary to undergo training and pass the departmental examination as an essential condition of becoming a member of the service. But the Rule is not worded as "no person selected for appointment to the service shall be a member of the service unless he completes training and passes the departmental examination as is prescribed by Government from time to time". The rule, as formed, contains a direction to the appointing authority to require a person selected for appointment, before his appointment to the service, to com--plete training and pass the prescribed departmental examination. No penalty is provided in case a person is appointed without having passed the departmental examination, as is the case of the appellant and the respondents. As the appellant and the respondents were all appointed as Naib-Tehsildars without passing the departmental examination, the question which arises for consideration is whether they did not become a member of the service because of not having pass the departmental examination.
21. Rule 8 only intends to direct the appointing authority to require a person selected to the service to undergo training and to pass departmental examination before appointing him. It contains no more than a direction to him not to appoint to the service a selected person before he has done so.
22. But if an appointment is made in contravention of the rule, without the person selected having passed the departmental examination the person appointed does not cease to be a member of the service, nor does any disability attach to him. No disability is provided in the rules, for a disregard of the direction in the rule. If a person is appointed as Naib-Tehsildar without having passed the departmental examination, no obligation attaches to the person appointed as Naib- Tehsildar to insist that he will not join as a Naib-Tehsildar unless he has passed the departmental examination. When he joins service, he can only be called upon to pass the departmental examination in the number of attempts provided for, and it is significant that when the rule provides for passing of departmental examination, it requires its passing in such number of attempts as may be prescribed. In so providing the intention could not be to make this a pre- condition for membership of the service. This is rendered amply clear by reference to sub-rule (5) of rule 10, which provides that if a member of the service fails to complete successfully any training or pass any departmental examination prescribed under sub-rule (4) within such period or in such number of attempts, as may be prescribed by Government, the appointing authority may, in case he has been appointed by initial recruitment, dispense with his service, and, in case he has been appointed otherwise, revert him to his former post, or if there be no post, dispense with his service.
23. This sub-rule is of particular importance, as it enables departmental examination to be taken and passed by a member of the service. It follows that passing of departmental examination is not pre- -condition of membership of the service. Sub-rule (4) of rule 10 also provides that no person shall be confirmed in service unless he successfully completes such training and pass such depart-- mental examination as may be prescribed by Government from time to time. Rule 8 cannot be interpreted to mean that n one can be deemed to be appointed to the service unless b passes the departmental examination, as sub-rule (4) of rule 10 clearly permits to the contrary and such an interpretation of rule 8 is not permissible. When sub-rule (5) of rule 10 clearly contemplates and visualises that after a person has become a member of the service he may complete the training and pass the departmental examination within such period and in such number of attempts, as may be prescribed, rule 8 cannot be interpreted as implying that if departmental examination is not passed before joining as Naib-Tehsildar, he does not become a, Member of the service.
24. Under rule 10 (1) a person appointed against a substantive vacancy shall remain on probation for a period of two year if appointed by initial recruitment and for a period of on year if appointed otherwise. When sub-rule (4) of this Rule requires that no person shall be confirmed in the service unless he successfully completes such training and passes departmental examination, as may be prescribed by Government, it clearly contemplates that the person becomes a member of service o appointment though he may not have passed the departmental examination. Thus this rule envisages that the departmental examination can follow appointment to the service. The well established principle of interpretation is that if there is a conflict between two rules, and the two rules cannot be mad consistent, the later rule will prevail over the former and in this aspect of the case sub-rules (4) and (5) of rule 10 must in case of inconsistency prevail over rule 8. But rule 8 in our view is not intended to lay down that no one shall be a member of the service unless he undergoes training and passes departmental examination.
25. Rule 8 merely intends to lay an obligation on the appointing authority to require a person to undertake the training and to pass a departmental examination before appointing him, but if an appointment is made without it, that appointment is not rendered invalid under any principle of law. Rule 8 is only directory and not mandatory. The distinction between mandatory and directory is brought out in PLD 1957 Lah.
1. Wheal a rule or provision charges some public authority with a duty and no express or clearly implied indication is given by the Legislature that a failure to conform to the letter of the la will entail the drastic consequence of invalidation and further such invalidation will result in unmented injustice or serious general inconvenience to members of the public or other persons to be specially affected the public or those persons having no effective control over the sections of the authority concerned, the provision is construed as carrying a directory rather than mandatory condition. Of course, the appointing authority ma require a selected person to undergo training and pass depart--mental examination before appointing him so as to satisfy the requirement of rule 8, but if a person is appointed without passing the departmental examination, his appointment is no rendered as invalid and he can count his seniority. Such an interpretation is likely to be more in the public interest. For example, there may be urgent need for the services of a Naib---Tehsildar. Should a selected candidate be not appointed if he has not passed the departmental examination? How will the used be satisfied otherwise. Why should not a Naib-Tehsildar be appointed in a temporary vacancy or in officiating capacity as in all other services, and why should it be. necessary for such appointment to be made only after departmental exami--nation has been passed. If most of the other services permit this and generally departmental examinations are required to be passed after entry into service, is there any particular reason for departure from the general practice and to deny member--ship of service in the case of Naib-Tehsildars if it is considered a necessary precondition that an appointment should not be made unless the departmental examination has been cleared, the appointing authority has merely to observe the condition in rule 8, but cannot rely on its own omission or error to deny rights and privileges accruing on appointment as Naib-Tehsildar.
26. The practice prevailing in the department is that on selection as Naib-Tehsildar candidates are required to undergo training for one year in the case of promotees, and two years in the case of direct recruits, and 3/4th of the pay is paid as stipend to direct recruits while under training, and salary of the lower post is paid to promotees, but full pay is given to appointees on joining as Naib- Tehsildar, even in officiating capacity. All the rights and privileges of leave, pension appointed on probation. In all the divisions of the Punjab Province, only a limited number of substantive vacancies exist and Naib-Tehsildars are generally appointed to, temporary vacancies. On selection they remain Naib-Tehsildars candidates, but on being posted as Naib-Tehsildars, they become full-fledged Naib---Tehsildars and as such members of the services, for otherwise there is no legal sanction behind their orders and acts, and to deny the status of a Naib-Tehsildar to them is to create a situation which is likely to create chaos by rendering their proceedings and orders without legal effect, Such an interpreta--tion of rule 8, which renders their acts and order without authority must be avoided.. On appointment as Naib-Tehsildars they can no longer be treated as Naib-Tehsildar candidates, as there is no sanction in any law for Naib-Tehsildar candidates to perform the various acts and duties which they have to perform as Naib-Tehsildar.
27. Thus though 1962-Rules contemplate selection of Naib---Tehsildar candidates, the candidates on appointment as Naib---Tehsildars attain full-fledged status of Tehsildars and no long remain candidates. This is rendered further clear by clause (6 and (c) of sub-rule (2) of rule 9 which deals with seniority. The two sub-clauses contemplate appointments made against temporary vacancies. In filling temporary vacancies, the person appointed are not on probation and may not have passed that departmental examination. The rules enable passing of the examination in a number of attempts. If without passing 2 6 departmental examination person does not become a member of the service, these clauses (b) and (e) of rule 9 are rendered of no effect and it is not possible to place such an interpretation on rule 8 that it supersedes the provisions of rules 9 and 10.
28. Rule 9 deals in particular with the fixation of seniority of officials appointed by initial recruitment or otherwise to sub--stantive or temporary vacancies, and thus rule cannot be over-ridden by rule 8, being a special rule dealing with seniority. 19 the fixation of seniority in accordance with the settled principle of interpretation, rule 9 must be given full effect in preference to anything contained in rule 8.
29. If rules 8, 9 and 10 are read together, it become obvious that a selected candidate shall be required to undergo training and pass the departmental examination, no more no less. Rule 8 does not have any bearing on the question of seniority or on when a person selected becomes a member of the service. Thus seniority must be determined in accordance with rule 9 When in the Explanation to sub-rule (1) of rule 10 officiating service is contemplated, it follows that a person my rends, officiating service as distinct from appointment to a substantive vacancy and rule 8 cannot be used to render nugatory service rendered by a person in officiating or substantive capacity, he has not passed the departmental examination. To do so would be a clear contravention of sub-rules
(4) and (5) of rule 10. Therefore, rule 8 must give way and in order to reconcile it with rules 9 and 10, it has to be read as containing no more than a direction to the appointing authority before making appointments to the service, so that in practice, a person selected is required to undergo training and to pass departmental examination before appointment as Naib-Tehsildars as in the case of Tehsildars. The rule applicable to Tehsildars and Naib-Tehsildars being the same, the appointing authority may strictly conform to rule 8 before making appointments to the service and posting of Naib-Tehsildars, and if it takes this precau--tion no one can complain.
30. In this case, as in the case of others, the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 were made applicable to the parties in 1967 by which time the appellant had been appointed as Naib-Tehsildar and had completed his departmental training. Rule 8 of these Rules could not be utilized in 1967 to invalidate their appointment as Naib-Tehsildar or to urge that they had not become members of the service, as retrospective effect could not be given to rule 8 to invalidate the selection of appointments already made. Therefore, to my mind the question whether rule 8 invalidates the appointment made in contravention of it does not arise. In both these cases, the appointments having been made much earlier than the application of the rules to the parties must be deemed to have been validly made and it could not be held that the parties were not member of the service.
31. The view taken that seniority can only be counted from the date of passing the departmental examination clearly contraven the principles on which seniority is to be determined under rule 9 and its express provisions. Seniority must be determined in accordance with rule 9 and no other consideration can allowed to override its clear meaning. In this respect rule can override rule 8 but not vice versa. Thus in the case of direct recruits seniority must be determined under clause (1) of rule 9in accordance with the order of merit assigned by the Commissioner in the case of Naib- Tehsildars and person selected in an earlier selection shall rank senior to the persons selected in later selection. Whatever be the date of passing the departmental examination, this rule must be given effect to and seniority determined in accordance with the order of merit assigned by the Commissioner. If the rule so provides, as it does, neither the Commissioner nor the Board of Revenue has Powers to provide anything to the contrary. In order to make a different provision, the rule must be altered, but so long as the rule remains as it is, it will have to be followed. On the basis of this rule, the order of merit assigned by the Commissioner must prevail in the case of 'A' Class recruits, and as the appellant was placed at No. 8 in order Of' merit, he must be; deemed to be senior to the respondents directly recruited on 10-4-1960 and placed below him and respondents 9, 10, 11, 14 and 15 who were selected as ---A--- Class candidates in subsequent selections.
32. The seniority of the appellant, vis-a-vis respondents 3-6 who are promotees has to be determined on the basis of their continuous appointment under sub-rule (2) of rule 9. In their cases, it appears as has been explained to us that their appoint--ments as Naib-Tehsildar were invariably made against temporary vacancies, because substantive vacancies were filled by senior Naib-Tehsildars and therefore, the dates of continuous appointment will determine their seniority. The date of appointment in the case of appellant being 25-7-1962 and that of the respondents 3-6 being 5-3- 1956, 10-4-1960, 30-8-1960 and 3-6-1962 they are senior to him. In the case of Malik Maqbool Hussain, the date of continuous Officiation is the date of his selection when he was approved as a candidate and became eligible for appointment to the service. This date cannot precede the date of his selection.
33. We, therefore, direct that the seniority of the appellant and the respondents may be fixed as above.
34. This appeal, therefore, succeeds but there will be no order as to costs.