M. S. H. QURESHI, J.-The petitioner is seeking leave to appeal from the order of the Punjab Service Tribunal, Lahore, dated 12-4-1982, whereby his appeal against the seniority list dated 10-9-1981 (showing seniority as on 1-9-1981) wherein he had been placed junior to respondent Nos. 2 to 12, was dismissed.
2. Petitioner Nisar Ahmad Sheikh, who had joined service on 2-10-1958 as a temporary Assistant Engineer in Communication and Works Department, West Pakistan, was promoted as officiating Executive Engineer with effect from 14-6-1966. Upon the dissolution of the Province of West Pakistan, the question of allocation of the officers of that province to the newly-created provinces arose. As the petitioner was domiciled in the district of Peshawar, he was allocated to N.-W. F. P. And was asked to be relieved of his duty in Lahore before 30th June, 1970 and to report for duty to the Government of N.-W. F. P. On 1-7-1970.
3. In the meantime, the petitioner had applied, on 14-6-1970, to the Government for change of domicile to Sheikupura District, Punjab, and for necessary amendment in his service record. The application was turned down in August 1970 by the Council of Governors for the reason that the Punjab Government had declined to entertain "at this late stage" the request for change of domicile and allocation. He made a further application on 15-8-1970 drawing the attention of the Government to the circular letter dated 19-4-1966 which permitted a refugee Government servant to exercise his option for permanent settlement anywhere in West Pakistan even after his entry into the Government service, on the ground of his having acquired immovable property in any district.
In the application he gave an undertak--ing to "forego such benefit if any in revoking my provisional domicile from Peshawar". In reply, he was asked on 7-9-1970 to apply through the Government of N.-W. F. P. Another application made by him on 25-1-1971 was rejected by the Government on 5-11-1971. The petitioner, nevertheless, persisted in the matter and ultimately the Government of the Punjab, vide letter dated 27-6-1972 approved his "transfer" from N.-W. R P. To Punjab subject to the condition, inter alia, that he would agree to be placed at the bottom of the seniority list of XEN's of C. & W. Department. He accepted the condition and conveyed the acceptance in writing on 30-6-1972, then on 11-7-1972 and again on 17-7-1972. He was accordingly - repatriated to the Punjab.
4. However, in the seniority list, which was published on 28-2-1973, he was shown senior to the aforesaid respondents. This led to the filing of a number of appeals before the Punjab Civil Services Appellate Tribunal. He was again shown senior to the said respondents in the seniority list published on 12-6-1979. But in the impugned seniority list dated 10-9-1981 -he was shown junior to the respondents, whereupon he took the matter in appeal before the Tribunal. The Tribunal came to the view that as the petitioner had himself sought repatriation from- N: W. F. P. To the province of the Punjab and had in this connection expressly accepted the condition that he would take a place below all the Executive Engineers in the Punjab as on that date, he could not challenge the seniority assigned to him on the basis of that acceptance and that the Department was bound to implement the same and to correct the earlier tentative seniority lists.
5. Mr. D. M. Awan, who appeared for the petitioner, urged that the petitioner's case was not of transfer but of re-allocation in the wake of the dissolution of the province of West Pakistan and that he was entitled under the relevant instructions of the Government to a change of his domicile with the consequential results. The break-up of the Province of West Pakistan had been brought about by Province of West Pakistan (Dissolution) Order, 1970 (President's Order No. 1 of 1970), which had been promulgated on 30th March 1970. By this Order, the Province of West Pakistan would cease to exist and in its place four Provinces would be constituted as from the appoint--ed day, that is, 1-7-1970. But even from the date of promulgation of the Order, the President was empowered by its Article 20 (1) to make provisions, inter alia, for--- " (e) appointment and transfer of officers and other authorities for the purposes of the new Provinces and their power and functions and allocation of members of any service constituted in connection with the affairs of the Province of West Pakistan to, and the constitution of corresponding services ; for, such Provinces ; the settlement of the inter se seniority of officers in such a, newly-constituted service."
By sub-Article (2) of the Article, the Governor of West Pakistan was also empowered to exercise powers in respect of the above matter until the appoin--ted day. In this connection certain decisions were taken regarding allocation of the personnel, for the implementation of which the Chief Secretary of the Province of West Pakistan issued instructions dated 12-5-1970. According to these instructions, "Postintegration recruits will be allocated to the Province of domicile" It was, however, clarified in para. 5 of the instructions that "It should be clearly understood that these allocations do not mean actual posting at the stage because surplus officers may be/to be posted on deputa--tion/loan to Provinces other than the Province of their domicile". In exercise of his powers and in pursuance of the policy, the Governor of West Pakistan made the allocation of the Government officials by order dated 9-6-1970. It was thereafter, that the petitioner made his application for change of domicile on 14-6-1970, which, as already noted, was turned down in August 1970. The question of allocation or re-allocation under the President's Order No. 1 of 1970 had, by then, come to an end and any subsequent request in this regard could be decided by the Provincial Governments under the ordinary relevant rules.
6. The first rule cited in this regard is the Services and General Adminis--tration Departments, instructions dated 7-9-1962, which prescribe that "in case of persons who want to change their domicile and go to a different cadre on their own request, the Government servant concerned should get the lowest position in the cadre to which he seeks the transfer". There is another circular letter issued by the S&GAD, Government of West Pakistan, dated 19-4-1966 laying down that "in the case of displaced Government servants, request for change of home district which was declared before proper settlement, on the ground of acquisition of immovable property in another district, should be accepted". The instruction is, however, silent on the ques--tion of seniority of such Government servants whose request is so accepted, Nor is there anything to suggest that it superseded the provision relevant to seniority in the earlier circular of 7-9-1962. The specific question of the "seniority of Officials Repatriated to Punjab from other Provinces" was considered and instructions were issued by the S&GAD on 23-11-1974. Which included instructions for fixing the seniority of such repatriates. It was, however, reiterated therein that "These instructions will not apply in individual cases where the officials concerned had/have been transferred to Punjab from Baluchistan and other Provinces at their own request. Such officials are treated as fresh recruits for purposes of seniority and shall be governed by orders issued separately in each case."
7. These narrations go to show that the petitioner, in consequence of President's Order No. 1 of 1970, had been allocated to the N.-W. F. P., that his initial request for change of domicile to the province of Punjab having been rejected in August 1970, his transfer subsequently allowed was not question of allocation or re-allocation under P. O. No. I of 1970 but o transfer from one province to another and that the rules relevant to such transfer empowered the Government to relegate the transferred official to place at the bottom of the seniority list as on the date of such transfer. The benefit of circular letter dated 19-4-1966 could not be claimed for transfer from one province to another.
8. This takes care also of the contention of Mr. D. M. Awan that the petitioner, in terms of the circular letter dated 19-4-1966 and the policy decision relevant to the dissolution of One Unit to allocate the Government servants to the province of their domicile, was entitled to transfer without any condition attaching to his seniority and that he could not be deprived of his such entitle--ment notwithstanding his acceptance of the condition. He argued that the petitioner could not opt out of his right conferred by law or the rules. In this connection he relied on Ghulam Sarwar v. Pakistan (1) and West Pakistan Province v. Jamshed Miran (2). In the first cited case, it has been held that the Government has the capacity to enter into contracts of service but no contract which has the effect of taking away or curtailing either the protection given by the Act (Government of India Act, 1935) itself or the right required to be given by the Rules framed under the Act, can be valid or binding. In the second cited case, a declaration obtained subsequently from the employee that his appointment was subject to the condition that his services were liable to termination on one month's notice, although no such condition had been imposed at the time of his appointment, was held to be unconscionable and not binding on the employee. These rulings, however, are not attracted to the present case where the . Transfer, as already held, had not been made pursuant to a policy of Government. In case of a transfer on the Government servant's own request particularly from one province to another, there is no rule entitling him to seniority on the basis of his original appointment.
9. Learned counsel, then, referring to the judgments of the Punjab Civil Services Appellate Tribunal, Lahore, headed by Retired Justice S. A. Hamood, in the appeals of Khushnood Ahmad (Appeal No. 102/60 of 1973, decided on 10-9-1973 ), Akbar Khan (Appeal No. 103/68 of 1973 decided on 14-9- 973) and Abdul Majid (Appeal No. 108/75 of 1973 decided on 12-9-1973), urged that the question of the seniority of the petitioner having been determined in those appeals, the same had become a past and closed transaction and as such could not be re-opened either by the Department or the present Tribunal. For this, he relied on W. C. Austin V. Punjab Civil Service Tribunal (3) in which it had been held that a matter decided by the Civil Services (Appellate) Tribunal had assumed finality and as such the determination had become a past and closed transaction, not liable to be .Re- agitated before the Tribunal under the Punjab Administrative Tribunals Act, 1974. It is to be noted that in the present case the fact that the transfer of the petitioner had been secured at his own request and upon his acceptance of the condition that he would be relegated to the lowest position in the seniority list, had not been brought to the notice of the Tribunal who had treated the matter as of allocation under P. O. No. 1 of 1970. The Tribunal had in Khushnood Ahmad's case thus observed :
(1) PLD.1962 SC 142(2) PLD 1965 Lab. 729
(3) 1981 SCMR 554 "The instant case is not one of transfer within the mischief of the S & G A D's circular letter quoted above (of 7-9-1962), but is a case of allocation on disintegration of the Province of West Pakistan within the ambit of the West Pakistan (Dissolution) Order, 1970 (P. O. No. 1 of 1970) and as such a person allocated by the Government is exercise of its powers does not lose the benefit of his past service and does not have to be placed in the lowest position the cadre of Executive Engineer.
Therefore. There is no force in the claim of the appellant to seniority over Mr. Nisar Ahmad Sheikh."
It is significant to note that the same Tribunal when the actual facts were brought to their notice observed in Muzaffar Iqbal Sheikh's case (Appeal No. 107/79 of 1973 decided on 27-12-1973): "In view of the order of the Governor, which was accepted by respondent No. 15 (present petitioner) and he agreed to his transfer to the Punjab Province on the condition that he would be placed at the bottom of the seniority list of Executive Engineers of C & W Department, it is difficult for us to hold that respondent No. 15 is not bound by the condition of his transfer from N.-W. F. P. To the Punjab Province. He not only accepted the condition expressly, but he acted upon it by joining the Punjab Province. We are surprised that this order has not been given effect to in the impugned seniority list. It is, however, for the competent authority to give effect to it."
When their attention was drawn to their earlier decision in the cases of Khushnood Ahmad and others, the Tribunal observed "We must admit, however, that in those cases the order of allocation of" this respondent to N: W. F.
P., the order of the Governor dated 27-6-1972 and the consent of this respondent to be placed junior to the junior most Executive. Engineer of the C & W Department were not produced before us."
Continuing, the Tribunal observed "We are conscious of the fact that our previous orders are binding on the Government, but the question whether the case of this respondent was one of transfer on condition imposed or of allocation is one of fact, and we cannot but hold on the material now produced before us that it was a case of transfer on the condition that this respondent would be placed junior most amongst those officiating as Executive Engineer and this was accepted by this respondent. In view of this, it will be open to the Government to assign new place of seniority to this respondent in the seniority list was revised in view of the order of the Governor."
The above was reiterated by the same Tribunal in Shaukat Ali's case (Appeal No. 131/92 of 1973 decided on 2-1-1974) and it was further observed: "We are conscious of the fact that our previous orders are binding on the Government but we cannot but hold on the material now produced before-us that the respondent (present petitioner) was transferred to the Punjab Province on the. Condition imposed which was accepted by this respondent and in view of this, it is open to the Government to assign a new place of seniority to this respondent in a seniority list of officiating Executive Engineers as and when revised."
The same view was followed by the Tribunal in yet another appeal of Muhammad Ashraf Beg (Appeal No. 146/95 of 1973 decided on 22-1-1974).
10. It is clear from a reading of the orders of the Tribunal that their earlier decisions in the cases of Khushnood Ahmad etc. had been obtained on suppression of true facts and that on coming to know of the same, the Tribunal had changed their view and had held that the condition imposed by the Governor's order was binding and that the Government was competent t6 assign a new place of seniority to the present petitioner. To assert, therefore, that the decision of the Tribunal in case of Khushnood Ahmad etc. Had become sacrosanct and binding on the Government is no more than a technicality. In any case we are not satisfied that the view taken by the present Tribunal involves a substantial question of law of public importance such as would justify an interference.
11. Learned counsel next urged that in the light of rule 15 of the West Pakistan Service of Civil Engineers (Buildings and Roads) (Class I) Rules, 1967 and in view of the coming into force of the Punjab Civil Servants Act (VIII of 1974) with effect from 4-6-1974, the seniority already assigned to the petitioner by the seniority lists of 28-2-1973 and 31-5-1979 had become pro--tected and as such not liable to interference by the Tribunal. We find P. " substance in this assertion, because no such protection is available either under the said Rules or the Act in the case of a transfer from one province to, another nor is there any constraint placed therein in the matter of rectification, of an erroneous assignment of seniority.
12. In the result of these discussions we find the order of the Tribunal to be unexceptionable. We accordingly dismiss this petition and refuse to grant leave to appeal.