' S. ABDUL JABBAR KHAN (CHAIRMAN).-Mr. Muhammad Ayub Rizvi, Lecturer and 80 others (As per list at Annexture A) have filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which they have impleaded Secretary to Government Punjab, Education Department Lahore, Director Public Instruction, Punjab, Lahore, Mr. Saeed Ahmed Shah, Lecture Government College Sahiwal and 349 others (as per list 3 at Annexure B) as respondents. It has been prayed on behalf of the appellants that the impugned seniority list (Annexure E) be set aside and appellants be declared senior to the contesting respondents as Lecturers in Grade 17. It has been further submitted that in the event of success of appeal respondent No, t be directed to reconsider the promotion of the appellants from the date of promotion of their Juniors as a consequential relief and also to give them benefit of seniority in Grade 17. They have further prayed for award of the costs in their favour in case the appeal succeeds.
2. Brief facts of the case are that the appellants entered into the West Pakistan Education Service as lecturers on ad hoc basis from time to time earlier than 1st January, 1966. Such persons could not be regularized for one reason or the other. Dissatisfied with this state of affairs representations were submitted to the Government to remove this hardship which had occurred in their cases due to cycle system of filling the vacancies on the basis of regional representation. The Governor of West Pakistan vide notification dated 28th February, 1970 regularized their services and bestowed upon them the seniority from 1st January, 1970. This notification of course laid down certain conditions as pre-requisite for such regularization. As the appellants fulfilled the conditions provided in the said notification their appointments were regularized through formal notifications placed on the record as Annexures D/I, D/2 and D/3. Sometime later, respondents Nos. 1 and 2 fixed the seniority of the appellants vis-a-vis the contesting respondents and issued a seniority list as it stood on 31st December, 1978. According to this seniority list the contesting respondents were placed at Serial Nos. 90 to 440 whereas the appellants were shown below them i,e, from Serial Nos.
442 to, 522 (Officer at Sr. No, 441 is dead). This seniority list was circulated by the various Divisional Directors of Education and objections were invited upto 15th October, 1979. The appellants submitted their representations in which they challenged the seniority of the contesting respondents over them. As there was no reply to the representations despite the fact that the period of 90 days had elapsed, hence this appeal.
3. We have heard the learned counsel for the appellants as well as the learned counsel for the respondents assisted by the Government Pleader and have perused the record of this case carefully with their assistance. It was submitted on behalf of the appellants that normal service Rules contained in the West Pakistan Education Department Collegiate Branch (Men's Section)
Class II Rules, 1962 (now will be mentioned as Rules of 1962) provided only when only one method of recruitment to the post of Lecturers in the college's, viz. By initial recruitment. The initial recruitment was made through Public Service Commission who used to advertise the posts and select out of the applicants by evaluating merit according to the standard prescribed by the Government. The Public Service Commission made the evaluation on the basis of Academic record as well as their performance before them through interview. The appellants could not be inducted into service through these Rules as there were hurdles in their way keeping in view the regional representation formula. Moreover, some of them could not be appointed as Lecturers for lack of vacancies in the region to which they belonged. It has been further submitted that the Public Service Commission in a number of cases found them eligible but could not accommodate them due to the above- mentioned system. According to the learned counsel for the appellant, this hardship was removed with the promulgation of notification of 1970 which is and would be for all purposes a valid notification substituting existing Rules of 1952. The learned counsel as further argued that as this no imitation unequivocally conferred upon the appellants seniority with effect from 1st January, 1970 therefore the respondents have no locus standi to claim seniority over them and the act of respondents Nos. I and 2 would be a flagrant violation of said notification having the force of Rules.
With regard to the 23 respondents out of the contesting respondents who have been shown senior as well as junior inter se and vis-a-vis the contesting respondents it was submitted that their case was undependable for the sole and simple mason that when their seniors were juniors to the appellants by the strength of notification of 1970, therefore, they would not be allowed to claim seniority over the appellants.
' Reliance has been placed for this contention on H. A. Shah v. Director Social Welfare (1). While concluding the arguments the learned counsel has put forward a plea that the case of the respondents is hit by Law of Acquiescence for the reason that this notification being in the field from February, 1970 and individual notifications in consequence of the general notification also issued in 1971 in which specific date of appointment was assigned to the appellants, the attitude of the respondents not to challenge the same would forego their right to do so at this stage because the present seniority list has just reflected the position of their appointment as notified earlier in 1971. He has placed reliance for this legal plea on 1980 PLC (C. S.) 33, N L R_1979 Service Trib. 266, 1980 (?) PLC (C.S 38 and M. Idrees Khalid's case (2).
4. The learned counsel for respondents first of all has raised a preliminary objection against the admission of this appeal on the ground that a similar matter was decided by N.-W.F.P. Service Tribunal and when that matter was brought before the Supreme Court of Pakistan for permission to grant leave for appeal the same has been granted. Therefore, the Rule of Propriety required that this Court should not take decision in this matter till the case was finally adjudicated by the Supreme Court of Pakistan. He has placed on record a copy of the judgment by which leave for appeal was granted on 9th June, 1980 against the judgment dated 10th January, 1980 of the Service Tribunal in N.-W.F.P., Peshawar, in Appeals Nos. 20 and 23 of 1979. The learned counsel after raising this preliminary objection has vehemently contested the claim of the appellants that the notification of 1970 was a valid notification and sacrosanct in their case. According to the learned counsel this notification would have no effect when the Rules of 1962 were in existence and would be the proper rules governing the seniority as well as the method of recruitment laid down therein.
He has also made grievance of the fact that the appellants have misled the Court by submitting that they were duly approved by the Public Service Commission whereas, according to the learned counsel, they were rejected by the said forum. He has also challenged the claim of the appellants that in their cases interviews were not necessary by the Public Service Commission which was a prerequisite for their regularization. According to the learned counsel the notification of 1970 was a back-door method as well as unjust as it has jeopardized the seniority of respondents who had joined the service under the Rules of 1962 duly after being interviewed by the Public Service Commission and confirmed by the said authority. He has gone further to say that even if for the sake of argument we accept that the notification of 1972 was a valid notification the appellants do not fulfil the conditions laid down in the said notification and thus could not take the benefit of these Rules promulgated under the notification of 1970. According to the learned counsel the touch stone of regularization was the approval of the Public Service Commission in these matters. It has been argued that the notification of 1970 can only be considered a notification of relaxation in consonance with clause 13 titled 'relaxation' in Part II of 1962 Rules. As the Service Rules are always applicable in the case of regularized lecturers, therefore the question {{FOOT NOTE}}
(1) 1975 PLC (C S T) 69 (2) 19755P L C (C S T) 87 {{FOOT NOTE}} ' of seniority would be decided only with reference to such Rules and not by any other notification of a later date.
5. We have given our anxious thought to all the points raised by both the parties and first of all would advert to an issue which has been raised by the learned counsel for the respondents in his written statement claiming seniority on the basis of ad hoc appointment, whereas the appellants have conceded by submitting that they would not make any claim with regard to ad hoc period of their appointment prior to their regularization through notification of 1970. It is a settled law that ad hoc service does not count towards seniority. We place our reliance on 1977' PLC (C. S. T.) 165 of this Tribunal as well as on Noor Ullah Qureshi v. Secretary to Government of Pakistan, Ministry of Finance (1) at p. 325 wherein it was held as under : - "It is clear that seniority in grade to which they had been promoted was the subject-matter whereas in the instant case admittedly the appellants were ad hoc appointees who under the terms and conditions of their appointments were replaceable and the question is one of their regular appointments to the posts. Subsection (2) of section 2 of the Civil Servants Act, 1973 inter alia provides that an appointment shall be deemed to have been made on regular basis if it is made in the prescribed manner till such time that the appointments are regularized. There could be no question of reckoning their seniority in relation to the respondents who belong to the same grade."
' With these observations of the law cited above we have no hesitation to repel the argument raised by the respondents in their written statement that they being ad hoc appointees of earlier dates than the regularization of the appellants should be deemed senior to them.
6. With regard to the point of propriety raised by the learned counsel suggesting to this Tribunal to lay off their hand from this list till the decision is taken by the Supreme Court of Pakistan in a similar matter before them, it would be sufficient to say that unless and until there is a definite stay order by the Appellate Court (1.e. Supreme Court of Pakistan) the decision of the case before this Tribunal would be proper. In case the matter is decided against the appellants they would be in a position to agitate this matter before the appellate authority rather to keep them waiting here in this Court, particularly when no one knows when the case mentioned above before the Supreme Court is liable to be taken up and decided.
7. The main issue in this case is whether the notification of 1970 is a valid notification which the Governor was empowered to make or not. In this matter lot of law has been cited before us in support of the contention that the notification of 1970 was a legal notification substituting the existing Rules of 1962 for all purposes. We will place our reliance on the judgment of Supreme Court delivered in Mukhtar Ahmad and 31 others v. Government of West Pakistan, etc. (2) at p.
853. It was held by their Lordships as under :- "Thus, the order of the Governor dated the 1st June, 1965, by which {{FOOT NOTE}}
(1) 1980 PLC (C, S.) 319 (2)PLD 1971 SC846 {{FOOT NOTE}} ' lion of the training is an order having the statutory force. Clause (2) of Article 178 of the 1962 Constitution empowers the Governor to make Rules relating to recruitment to civil service and civil posts in connection with the affairs of the province. This clause does not provide that the Recruitment Rules are to be made in any particular manner nor does it require previous publication of the rules in the official Gazette. That being so, the Governor's order dated 1st June, 1965 prescribing the special method for appointment of 46 candidates to the posts of Assistant Agricultural Engineers was as operative as the Recruitment Rules themselves made by the Governor on the 18th June, 1963. By the Governor's aforesaid order the earlier Recruitment Rules shall be deemed to have been modified so far as recruitment to the 46 posts of the Assistant Agricultural Engineers was concerned. In other words the departure made by the Governor's order of the 1st June, 1965 as regards selection for training and eventual appointment as Assistant Agricultural Engineers, amounted to a special rule of recruitment governing these 46 posts in order to implement the scheme called 'Development of land and provision of machinery for augmenting water supply in West Pakistan'."
' Their Lordships at p. 855 of the said judgment went further to observe :- "The learned Judges (of High Court) appear to have taken the view that the Government could not give any undertaking contrary to the Recruitment Rules and held that the undertaking on which the appellants relied could not be enforced. This view does not appear to be correct inasmuch as the undertaking given by the Government to the appellants as Assistant Agricultural Engineers on their successful completion of the diploma course, as already stated, had the Governor's order, dated the 1st June, 1965 as its authority."
(Bracketing is ours)
' Similar view has been taken by their Lordships in Supreme Court in PLD 1962 SC 428 (?) where it was held that the Government should be left unfettered within their legal powers to frame Rules which may be best suited to the service conditions. In PLD 1962 SC 367 it was clearly said that Government power to vary its previous orders is undoubted. Their Lordships of the Supreme Court had already held in PLD 1960 SC 81 at p. 83 as under :- "Government has every right to make rules and raise the efficiency of the service."
8. The learned counsel for the respondents had taken strong exception during the course of his arguments by submitting that the notification of 1971 could not be retrospective in nature therefore the benefit of notification of 1970 could not be made available to the appellants on this principle of law. With regard to this it will be useful to point out at this stage that record of the case reveals that notification of 1971 was in fact a probe into the matter whether the appellants fulfilled the condition as laid down in the notification of 1970 or not. In this way it would not be easy to allege that this probe was a retrospective benefit bestowed on the appellants. However, even if it be considered that factually the notification of 1971 on the face of it was retrospective in nature we are fortified to repel this argument in view of the weighty pronouncement in case of Muhammad Mbar and 12 others v. Government of Pakistan and 12 others(1) where my Lord Cornelius, C.I., as then be was, laid down as under (at p. 369) :-- "It is also subject to the admitted power of the Government to date a permanent appointment retrospectively."
' This weighty pronouncement has been followed in a number of cases by this Tribunal which we are not quoting in extenso so as not to burden the file. In PLD 1969 Lahore 53 their Lordships of Lahore High Court while discussing the rule-making powers of the Legislature have observed as under :- "The Legislature says what it means. The language of the statute being clear Courts cannot go behind it to find out the so-called intention".
In the light of the above discussions we are of he considered opinion that the contention of the appellants that they were bestowed seniority by virtue of notification of 1970 with effect from first January, 1970 is justified and must prevail. We are fully convinced in view of the law laid down by the superior Courts of this country that Governor has got unfettered powers to make rules through notifications and even he can operate with legitimate force to bring such rules into existence through memos and letters of general application. In this view we are fortified by placing reliance in PLD 1965 SC 105, PLD 1973 SC 144 and PLD 1974 SC 351.
8. The learned counsel for the appellants during the course of arguments has raised a legal proposition adverse to the interests of the respondents that the respondents' case suffers of Acquiescence/Waiver. It has been submitted in this behalf that the notification of 1970 was in the field followed by individual notifications of 1971 in favour of the appellants in which the specific date of appointment and seniority was given. Despite these facts being within the knowledge of the respondents they failed to challenge the same either before the Department or before the then Punjab Civil Services (Appellate) Tribunal or any other Court of law. This, according to the learned counsel, amounted to acquiescence on their part and they were not in a position to challenge or disturb the position which prevailed in 1970 or 1971 through the notification. For this we are not inclined to accept the arguments advanced by the respondents for the reason that similar view has been accepted in Malik Jahangir Khan, etc. v. Punjab Government and 2 others(2) With regard to the argument of the learned counsel for respondents that the appellants did not fulfil the requisite qualifications laid down in the notification itself, we have examined Exhs. D/1, D/2 and D/3 and find that all of them were duly approved by the Public Service Commission as mentioned in these notifications. {{FOOT NOTE}}
(I) PLD 1962 $ C 367 (2) 1980 PLC (C 33 {{FOOT NOTE}}
10. In the light of the above discussions we proceed to accept the appeal so preferred by the appellants before us, set aside the impugned seniority list of 1978 by which the appellants have been placed junior to the contesting respondents with the direction that if the appellants have been ignored for the purposes of promotion to Grade 18 on the basis of impugned seniority list the matter may be reconsidered.