' S. ABDUL JABBAR KHAN (CHAIRMAN).--Nisar Ahmad Sheikh, Executive Engineer, C & W has filed an appeal under section 4 of the Punjab Service Tribunal Act of 1974 against the seniority list/ gradation list of Grade-18 officers of the Communication and Works Department as it stood on 1st September, 1981 and was published vide Notification No, SOEI (C & W) 1-16/71, dated 10th September, 1981. He has impleaded Secretary to the Government of the Punjab, Communication and Works Department, Mr. Muhammad Akhtar, Executive Engineer, Mian Muhammad Sharif, Executive Engineer, Mr. Abdul Hafeez, Executive Engineer, Mr. Majid Hussain Rehmani, Deputy Director, Mr. Zafarullab Khan, Deputy Director (Highways), Mr. Abdul Raziq Khan, Executive Engineer, Mr. Munir Ahmad, Executive Engineer, Mr. Ghulam Samdani, Design Engineer, Mr. Muhammad Akbar Khan, Deputy Secretary (Buildings), Mr. Mubarik Ahmad Bedar, Executive Engineer and Mr. Manzoor Ali Chaudhary, Executive Engineer. None of the respondents, except Mr. Ghulam Samdani, respondent No, 9, have come forward to contest this case.
2. By virtue of this appeal the appellant has prayed that his appeal be accepted and the seniority list dated 10th September, 1981 (as it st000d on 1st September, 1981) of Grade-18 officers placing the appellant at Serial No, 19 and the respondents 2-12 above may be set aside. It has been further prayed that respondent No, 1 be directed to place the respondent at Serial No, 3 immediately particularly to Mr. Ishfaq Ahmad Qureshi.
3. Brief facts of the case are that appellant is a qualified Engineer having degree of B. Sc.
Engineering from the Punjab College of Engineering & Technology (now re-named as University of Engineering & Technology) which he obtained in the year 1955. He joined the Communication and Works Department, West Pakistan on 2nd October, 1958 as Temporary Assistant Engineer in the cadre of E & M. He was promoted as Officiating Executive Engineer with effect from 14th June 1966 against a regular vacancy of Executive Engineer in the cadre of E & M with the approval of the Punjab Service Commission. The E & M and Civil Engineering Cadres were subsequently merged with effect from 20th March, 1967 by operation of the West Pakistan Service of Civil Engineers (Buildings and Roads) Class (I) Rules, 1967. In this way the appellant was member of West Pakistan Service of Engineers. The dissolution of West Pakistan was made by virtue of West Pakistan (Dissolution) Order, 1970 (P.
0. 1 of 1970) by Notification dated 9th June, 1970 issued by the Governor of West Pakistan. In view of above the Civil Servants working in the Province of West Pakistan had to be allocated to the new Provinces mentioned in Column 4 of the schedules. Mr. Nisar Abmad Sheikh, appellant, who was working at the relevant time as an employee of Canadian Firm working at Warsak Dam Project produced his domicile certificate as that of from Peshawar, so he was allocated to the Frontier Province and joined his new assignment. The appellant made a move for cancellation of said allocation before the Council of Governors who had substituted the Governor of West Pakistan as an authority in this regard, but the same was rejected vide a letter issued in August, 1970 from Mr. Ikram Ullah Qureshi, P C S, Deputy Secretary, Council of Governors to the Chief Secretary, Government of N.-W. F. P., Peshawar. The Deputy Secretary (Council of Governors) conveyed to the Chief Secretary, Government of N.-W.F. P., Peshawar that the application of the appellant for change of domicile and allocation to Punjab Province could not be entertained at that late stage.
Subject of this letter discloses that there was a representation of Mr. Nisar Ahmad Sheikh, appellant, for allocation to the Punjab Province. It seems that the appellant made another move in this respect and vide Annexure R-7 on the record, this move was again rejected by the Governor of the Punjab through letter dated 5th November, 1971, addressed to the appellant by Section Officer R-II for Secretary to the Government of the Punjab. In this letter it was said that the request of the appellant has been considered and rejected by the Governor. Subject of this letter discloses "Change of allocation from N.-W.F. P. To Punjab." However, taking advantage of a policy letter No, SOXII (S & GAD)8- 6/64 placed at Annexure 'C' on the record the appellant made another move to the Secretary C & W, Government of the West Pakistan, Lahore, through proper channel on 14th June, 1970 vide an application placed on the record as Annexure 'B' in which a request was made that his domicile for permanent settlement be declared Sheikhupura District. It was on 27th June, 1972 that a U.
0. No, SOR-II (S & OAD)8.38/70 was issued in which it was said that the Governor was pleased to approve of the transfer of Mr. Nisar Ahmad Sheikh, XEN (appellant) from N.-W.F. P. To Punjab subject to the condition that he produces a valid domicile certificate from any district of the Punjab and agrees to be placed at the bottom of the seniority list of EXN's of C & W Department. The appellant accepted the contents of said U.
0. And joined the Punjab Service of Engineers once again after giving in writing that he has accepted to be placed junior to the junior most XENs. It was on 28th February, 1973 that a seniority list of permanent/Officiating Executive Engineers came into being after the above-mentioned episode. In this seniority list the appellant's name appeared at Serial No,
66. All the respondents from 2-12 were shown junior to him. However there was some litigation between Muhammad Akbar Khan and the respondent and the matter came before the defunct Punjab Civil Service Appellate Tribunal. We will refer the implication of the above-mentioned judgment at its proper place.
Similarly on 12th June, 1979 another seniority/gradation list as it stood on 31st May 1979 was published by the respondent No I wherein the appellant was shown on No, 73 whereas respondent No, 2-12 at Serial Nos. 75, 76, 77, 79, 80, 82, 83, 84, 85, 87 and 87-A respectively, However, the impugned seniority list was published in which the appellant has been shown junior to the respondents. The appellant has now challenged the said impugned seniority list as absolutely illegal, mala fide, arbitrary, contrary to the statutory rules and ab initio void.
4. We have heard Mr. D. M. Awan, learned counsel for the appellant as well as Ch. Hameed-ud-Din and Mr. M. A. Riaz, representing only the contesting respondents Mr. Samdani and have gone through the record of this case carefully with their assistance. Lengthy arguments have been advanced from both the sides which continued for a number of days in which number of authorities have been cited by both the parties in support of their contentions.
5. The learned counsel for the appellant has submitted that the impugned seniority list "of 10th September 1981 which declares the-appellant junior to the respondents was not based on any rule whatsoever. According to the learned counsel it seems that the commitment of the appellant which he gave while corning to the Punjab from the Province of N.-W.F. P. Seems to be the basis with the respondent No, I. The learned counsel has submitted that this issue stood concluded vide the judgment in case of No, 102/60 of 1973 Mr. Khushnud Ahmad v. Secretary C Department and Mls.
Abdul Razak Khan, Monir Ahmad Khan and Nisar Ahmad Sheikh, in favour of the appellant (Nisar Ahmad Sheikh). In this way it has been argued that the same cannot be reopened and the respondent No, 1 was not justified to take into consideration the commitment of the appellant which was declared to be of no legal affect against him by the defunct Tribunal. It was further argued that the case of the appellant was not a case of transfer but a case of allocation which was duly made by the Governor although subject to the condition that the appellant would be placed junior to the junior most. It has been vehemently argued by the learned counsel that this commitment was given by the appellant was not implemented by the department for full nine years and he was shown senior to the respondents, therefore, its impact has whittled down and cannot be taken against him at this belated stage. Learned counsel in this regard has also relied on Act of 1974 in which seniority has been made a part and parcel of the terms and conditions of service, therefore, according to the learned counsel after coming into force of the said Act the appellant was not permitted to barter away his vested rights. Reliance has been placed on West Pakistan Province v. Jamshed Miran (1) and also an Appeal No, 328/470 of 1979 Siddlque Ahmad Chaudhary v. Government of the Punjab in which a reliance was placed on the Lahore High Court Judgment reported as PLD 1965 Lahore 729. Assuming without conceding the learned counsel submitted that if at all it was held that the appellant was bound by his commitment {{FOOT NOTE}}
(1) PLD 1965 Lah. 729 {{FOOT NOTE}} ' even then if he is allowed to suffer on that account it would be an act of discrimination as the Government has conferred the said benefit on one Muhammad Asif Zafar and the Governor has stated in so many words that the case of the appellant on all fours with the case of Asif Zafar. He has also further relied on Article 17 of the President Order No, t of 1970 which lays down terms and conditions of service of any civil servant as enjoyed by him before appointed dated, i. e. 1st July 1970 and has been declared that the same shall not be varied to his disadvantage. According to the learned counsel this order being a superior constitutional instrument the same could not have been superseded in any manner by the Governor of the Punjab by attaching condition to the detriment of the appellant.
6. On the other hand Ch. Hameed-ud-Din and Mr. M. A. Riaz has stoutly resisted all these prepositions a simply hollow and being of no avail to the case of the appellant. It has been submitted that once the allocation made by Governor of West Pakistan in case of the appeliAnt to the new Province of N.-W.F. P. Stood implemented and the appellant failed to challenge the same directly or indirectly the same had become a matter past and closed as according to the said Presidential Order no challenge could be made against it in any court of law. In this way the jurisdiction of this Tribunal has been challenged to entertain the present appeal before it. Learned counsel for the respondent has further submitted that the case of the appellant was a case of simple transfer from N.-W.F.P. To the Province of Punjab on his own request and not a case of allocation to the Punjab Province. According to learned counsel it was only the West Pakistan Governor who could make the allocations of all such civil servants according to their domicile and only the Council of Governors which substituted the said Governor could deal with these matters and nobody else. It has been submitted that the appellant had become a member of Service of Engineers in the newly-created Province of N.-W.F.P. And his request was nothing else but of a transfer from one Province to another with mutual approval of the two Governors therefor, according to learned counsel the case of appellant's allocation was a case of past and closed transaction. It was further urged that whatever may be the case whether of allocation or transfer one thing which goes against the appellant and rightly so i. e., that he accepted condition laid down by the Governor for accepting his request and acted upon the same by joining his new Province of service without any demur. It was stoutly argued that nobody can be allowed to approbate and reprobate under the doctrine of Estopple. The learned counsels came out with a grievance against misstatement Of facts by the appellant by stating that in case of No, 131/92 of 1973 'title Shaukat All v. Secretary, C. & W. Nisar Ahmad Sheikh and others Case No, 107/79 of 1973 the Tribunal has admitted that its observations in Khushnud Ahrnad's case were based on lack of knowledge of facts which were not brought to its notice in the said case. Stating the above- mentioned position the learned Tribunal held that the appellant was bound by the commitment which he had so made and the said condition was neither void nor invalid.
7. We have given our anxious thought to all the arguments so advanced before us and have respectfully perused the law so cited by the parties in order to assess the correct position of the contention so raised.
8. The main legal issues involved in this case are as under :-
(1) Whether the case of appellant was a case of allocation to the Province of the Punjab or a case of simple transfer from N.-W.F.P. To the Punjab, by the approval of the two Governors.
(2) Whether the undertaking given by the appellant to the Government that he accepted to be junior to junior most XENs in the Punjab was binding on him.
(3) Whether the Governor was empowered t) lay down this condition.
(4) Whether the judgment in Khushnud Ahmad's case once for all adjudicated this issue and the result of the same was binding on this Tribunal.
9. We will deal with all these issues one by one : ' In respect of issue No, 1 we have carefully read all the Annexures pertaining to this matter produced by both the parties. Annexure 'B' which has been placed on the record by the appellant is an application from the appellant to the Secretary C & W Department through proper channel. In the said application the subject has been mentioned "permanent settlement-declaration of home district". In para. 5 of the said application the appellant has submitted as under :- "I, therefore, beg to exercise my option of permanent settlement in the District of Sheikhupura as allowed under the instructions contained in the circular referred to above."
' Annexure 'C' is a letter from the Additional Chief Secretary to all Administrative Secretaries to the Government of West Pakistan, all Heads of Attached Departments, All Commissioners of Division etc. And the subject of this letter is Policy regarding posting of officers to their home districts". SO this letter which has been placed on the record does not talk of any at location but mainly pertains to the settlement of the Civil Servants who were refugees, keeping in view the spirit of the circular letter dated 21st May, 1964 to give them a choice to nominate their home district. Annexure R.-2 is a document which has enabled the appellant to leave N.-W.F. P. For Punjab The subject is "Representation of Mr. Nisar Ahma,d, Sheikh XEN for transfer of his services from the Government of N.-W.F.P. To the Government of the Punjab". The para. 3 of the letter has also stated that as. Mr. Nisar Ahmad Sheikh's case was on all fours with that of Mr. Asif Zafar. The Governor was pleased to approve the transfer of Mr. Nisar Ahmad XEM from N.-W.F.P. To Punjab. We have also looked into Annexure-6 placed by the respondent on the record which talks of change of domicile and allocation to the Punjab of the appellant with regard to his request and rejects the same as being belated. Annexure R-7 is a letter from the Government of the Punjab to the appellant but the subject given is "change of allocation from N.-W.F.P. To the Punjab". The contents disclose the Governor considered his request and rejected the same. In nutshell these different Annexures produced by the parties, sometime talk about the appellant's case as a case of allocation and sometime a case of Transfer. After going through the entire file of this case we are of the considered opinion that this controversy can be resolved by using the word of repatriation instead of allocation or transfer which has been a subject of hard contest between the parties. It cannot be denied by the parties that the appellant basically was a refugee from Hooshiarpur which fell in the Ex-Punjab Province. By virtue of partition he came over to the present Province of the Punjab and served here for about 12 years before he was allocated to the Province of N.-W.F.P. Nobody would like to leave his roots and will select a place where he would not feel comfortable. It seems that at that time as the appellant had no other choice for lack of proof of his domicile in the Punjab he opted for N.-W.F.P. On the strength of a domicile certificate from Peshawar as he was working at that time at Warsak. The appellant at once realised that he was a fish out of water as he was given instead of Engineering Job a job in the Food Department. Therefore, he started moving to go back to the Punjab to which he belonged through the ties of culture, language and environments.
Somehow or other his efforts failed but ultimately he saw a ray of hope in the circular letter which allowed refugees to settle themselves permanently at the place of their choice. In this manner we are of the considered opinion that this case of the appellant was all case of repatriation only and not a case of allocation or a case of transfer. The word repatriation has been defined in Chambers 20th Century Dictionary as under :- "Restore or sent back to one's country to return to one's country."
9. With regard to the second issue pertaining to his commitment so made by him while accepting his repatriation to the Punjab there is no dispute about the fact that it is very much there and the appellant does not dispute the same. The question would be whether this commitment was obtained under duress by employer from an employee or it was perfectly willing and free from any threat. We pose a question? If the appellant had not given the undertaking so given by him what would have been the result? The answer would be that he would have remained in the Province of N.-W.F. P. As a member of the said provincial service. By accepting the condition of being placed junior to the junior most the appellant gained by coming over to the Punjab Province to which he belonged by the ties of culture as well that of as the language. There was a choice before him either to lose the seniority or to remain for the rest of his period of service in the N.-W.F.P. So by accepting the benefit he gave up his seniority after taking into all pros and cons of his future life. At this stage it would be useful to mention that N.-W.F. P., Punjab, Baluchistan and Sind they are part of Pakistan and every Pakistani should be proud to serve in and part of this region as for a Muslim Allama Iqbal has said : e. For a Muslim of the God's world is his domicile. In view of above the approbation and reprobation would be fully applicable to the case of the appellant. It would be unfair if we allow the appellant under this proposition to avail the beneficial clause and to wriggle out of the undertaking by which he was likely to be hurt. In this connection we have to look two other aspects of the case which the learned counsel for the appellant has adverted to. He has relied heavily on the judgment of Khushnud Ahmad which was pronounced on 10th September, 1973 to show that the Tribunal comprising of Mr. S. A. Mahmud, Chairman and Professor Ashfaq Ali Khan as member observed as under :- "The instant case is not one of transfer within the mischief of S&GAD Circular letter quoted above but is a case of allocation on the disintegration of the Province of West Pakistan within the ambit of West Pakistan Dissolution Order, 1970 (P. O. No, 1 of 1970) and as such a person allocated by Government in exercise of its powers does not lose the benefit of his past service and does not have to be placed in the lowest position in the cadre of Executive Engineer. Therefore, there is no force in the claim of the appellant to seniority over Mr. Nisar Ahmad Sheikh, respondent No, I."
' If the matter would have remained as it stood on 10th September, 1973 Mr. D. M. Awan's arguments would have been forceful. Unfortunately this very issue came before the same Tribunal once in Muzaffar Iqbal's case vide a judgment of 27th December, 1974 and in Shaukat All's case vide a judgment of 2nd January, 1974 in which the Tribunal sat as Full Bench. This very Tribunal in Muzaffar War s case it observed as under : "Our attention has also been drawn on behalf of respondent of our decision in the case of Mr. Khushnud Ahmad decided on 10th September, 1973 and Mr. Muhammad Akbar Khan decided on 14th September, 1973 in which we declared this respondent to be senior to them, treated the case of this respondent as one of the allocations."
' Presidential Order No, 1 of 1970 ' We must admit, however, that in those cases the orders of the allocation of the respondent to the N.-W.F. P. The order of the Governor dated 27th June, 1972 and the consent of this respondent to be placed junior to junior most. Extract of the C & W Department was not produced before us.
' 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 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 condition was accepted by this respondent. In view of this it is unto the Government to assign a new place of seniority to this respondent in the seniority list as revised in view of the order of the Governor."
' While taking into consideration Shaukat All's case where the appellant figured as respondent he made a submission about the validity of the Governor's order in laying down the conditions which according to him were accepted by the appellant under coercion. The learned Tribunal after taking into consideration the arguments advanced in this regard which even now have been repeated before us by the learned counsel the Tribunal gave the following finding in para. 15 of this judgment. "Without going into the question of the applicability of clause (b) of the Circular of the S & GAD relating to change of domicile or going from one cadre to another, we are unable to agree that the order of the Governor was void or contrary to Rules of Statute, in view of the fact that the Governor made it a condition of the order of transfer of this respondent from N.-W.F. P. To the Province of the Punjab wherein the Engineers had become members of different services in their respective province as in view of the acceptance by this respondent of the condition imposed by the Governor, as a condition of his transfer his acting thereupon alongwith the order of the Governor, the imposition of the condition is neither void nor invalid and we find it difficult to hold that this respondent is not hound by the condition of his transfer from N -W.F. P. To the Punjab Province. The order of the Governor remains in force but it has been argued that since it has not been given effect to in the preparation of the impugned seniority list, it should be ignored. Unless it could be shown that, the order has been altered or rescinded, the impugned order has to be given effect to by the competent authority".
10. While concluding the said judgment the learned Tribunal again 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 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."
11. In view of two judgments given by the defunct appellate Tribunal in case of Muzaffar Iqbal Sheikh and Shaukat All the earlier observation given in the judgment of Khushnud Ahmad's case stands fully negated. The Tribunal has accepted in a most candid manner that their observation in Khushnud Ahmad's case was only given as the full facts regarding the allocation of transfer application of the appellant and his acceptance of the condition for such transfer were never brought to its notice. With this clarification with regard to the observation in favour of appellant in Khushnud Ahmad's case we are of the confirmed view that the observation in Khushnud Ahmad's case in favour of the appellant was given due to lack of knowledge of facts by the said Tribunal and the latter pronouncement of the Tribunal which were given after taking into consideration all the pros and cons of the case are of much higher value and would also be binding on us in.View of the law laid down in W. C. Austin's case decided by the Supreme Court of Pakistan cited as 1981 SCMR 554 as well in Feroz-ud-Din's case decided by us in Appeal No, (?) 1974. We, therefore, bold that the appellant was bound by his own commitment which he made to gain advantage in his rehabilitation back to the Province of his choice.
12. We will also like to look into the claim of the appellant that he was forced by compelling circumstances to give this commitment, therefore, the same should be considered as under coercion. In this matter Mr. D. M. Awan has relied on PLD 1962 SC 142 and PLD 1965 Lah. 729 by submitting that the seniority vested right as guaranteed by provisions of the constitution and by Punjab Civil Servants Act could not be bartered away by the appellant. We have perused with respect the authority so cited above and find that this case relate to the cases of dismissal from service/termination of service and no seniority matter was taken into consideration by their Lordships of the Supreme Court or Honourable Judges of the Lahore High Court.
13. On the other hand what we find is that their Lordships of the Supreme Court in 1981 SCMR 119 at pages 120-121 has upheld that once a person gives an undertaking not to claim any seniority he would be bound by the same. In PLD 1971 SC 846 it was held that the Government can enter into binding contracts with its employees even if such, a contract may be contrary to Rules and such a Contract is enforceable.,' in law. The appellant had given undertaking in 1972 that he would accept the lowest position in seniority list of his counterparts and as the same undertaking was accepted by the Governor, therefore, he cannot be allowed to get away from his stipulation. In 1981 SCMR 119 the said undertakings were declared quite valid. We have also attended to another argument of the learned counsel for the appellant that after the enforcement of 1974 Act the seniority has become one of the terms and conditions of service and as the order of the Governor and the acceptance of the appellant of the condition so given therein was not implemented by the department till the introduction of the said Act, therefore, the said order and its acceptance would be of no legal value. We are afraid, we cannot accept this argument as the same was repelled by the defunct Service Tribunal in Shaukat Ali's case and it was held "the order of the Governor remains in force but it has been argued that since it has not been given effect to in the preparation of the impugned Seniority List it should be ignored. Unless it could be shown that the order has been altered or rescinded the order has to be given effect to by the competent authority". The Governor is not only a Rule Making Authority but is a Head of Provincial Administration. To frustrate the order of the Governor in this manner would be an act of worst type of indiscipline. If the appellant had any grievance regarding his commitment which he only thought was due to the compelling circumstances he should have agitated this matte D with the Governor and not before any other forum. We once again reiterate that seniority was never protected as a vested right either in the Constitution of 1962 or 1972-73.
14. In this way the arguments of the learned counsel for the appellant that by the induction of Act, 1974 the earlier order of the Governor and the earlier stipulation of the appellant should be thrown over policy is devoid of all substance.
15. While discussing the legal issue No, 3 framed by us in our earlier part of our judgment, we have already discussed Khushnud Ahmad's judgment and we will not repeat what has been said by us above.
16. The result is we are of the considered opinion that the appellant was repatriated at his request in 1972 from N.-W.F.P. To the Province of the Punjab was bound by his commitment and the Governor while laying down such condition was within his prerogative to do so and the appellant could not be allowed to blow hot and cold in the same breath. We further hold that there was no coercion on the part of the Governor by which it may be said that the commitment was under duress. We further find that the order of the Governor was valid as held by the defunct-Appellate Tribunal in Muzaffar Iqbal's case and Shaukat Ali's case and the department was bound to implement the same and to correct the earlier tentative seniority list in defiance to the said order of the Head of the Administration of the Province. The result is we dismiss the appeal as being without merits. However, the parties will bear their own costs.