Ch. Muhammad Amin Javed, Member. Through this consolidated judgment we intend to dispose of titled appeals as common question of law and facts are involved in all the appeals.
2. The appellants have moved this Tribunal under Section-4 of the Service Tribunals Act, 1973 against impugned provisional seniority list dated 28.2.2013, whereby seniority position of the appellants was relegated, but the Respondent No. 3 shown senior to them. Feeling aggrieved the appellants have moved their separate departmental appeals dated 13.3.2013 to the Appellate Authority, which were rejected vide impugned order dated 9.4.2013.
3. While taking relevant facts for the purpose of disposal of the subject appeals we will first take up Appeal No. 121(L)CS/2015 of appellant Hammad Hassan Mirza, who started employment as Assistant Engineer (BS-17) w.e.f. 2.5.2001, promoted in BS-18 w.e.f. 26.1.2007, further promoted in BS- 19 on acting charge basis on 17.4.2012, on the recommendation of DSB. His name finds mentioned at SI. No. 3 of the Seniority List first time circulated on 7.6.2005 of BS-17; as per Seniority List dated 30.7.2007 of BS-18 his name stood at SI. No. 29, whereas Respondent No. 3 shown at SI. No. 56 in a separate cadre at the bottom of the Seniority List dated 30.7.2007 (BS-17). In the Final Seniority List of BS-17 dated 28.2.2013-, his name shown at Sl. No. 3 as well of Seniority List of BS-18 the name of Respondent No. 3 was shown at SI. No. 2 illegally and erroneously, over and above the appellant.
Feeling aggrieved, the appellant submitted departmental representation dated 13.3.2013 for correction of Seniority List, which was rejected by Respondent No. 1 vide order dated 9.4.2013 against which filed subject appeals praying for setting aside the order dated 9.4.2013, impugned Notification dated 6.5.2011 and promotion Notification of Respondent No. 3 dated 9.1.2013 in BS-18 w.e.f. 1.1.2002 besides assigning of seniority to Respondent No. 3 at S. No. 2 over and above the appellants and other Civil Engineers before the impugned Notification dated 6.5.2011 with the request for restoration of seniority of the appellants and the seniority of Respondent No. 3 in BS-17 may be reckoned from the date of Notification dated 6.5.2011. Similar is the grievance in other Appeals Nos. 122 & 123(L)/2015 with almost identical background and have thus been heard together.
4. Respondent Nos. 1 & 2 jointly submitted their parawise comments elaborating therein that the appellants have no locus standi to file these appeals, which are not maintainable in law and on facts of the case. Required, legal formalities were fully observed by the official respondents and prayed for dismissal of appeals.
5: Respondent No. 3 also filed separate written comments available on the record wherein he pleaded the non-maintainability of appeals on various grounds and prayed for dismissal of the appeals.
6. The learned counsel for the appellants contends that prior to amendment in Pakistan Railways Civil Engineering Rules, 2000 vide impugned Notification dated 6.5.2011 the post of XEN Mining has been placed at S. No. 33 in the said rules and the post was placed at S. Nos. 10 to 13 & 15 for grant of promotion in BS-18 and above. The learned counsel further argued that through the said Notification the Civil Engineers and Mining Engineers were clubbed in one group, which was not legal and lawful being Mining Engineers cannot perform the duties of Civil Engineers being different cadre and different nature of duties. Besides of different qualifications; he further added that in the judgment of the Tribunal dated 24.5.2010 passed on the appeal of Respondent No. 3, statedly made basis for amendment in the Pakistan Railways Engineering Rules, 2000, the appellants were not party. It is further contended that the placement of Respondent No. 3 in the list senior to the appellants is highly deprecated in law and rules through impugned Notification dated 6.5.2011 and granting promotion in BS-18 retrospectively w.e.f. 11.2.2002 by dint of Notification dated 9.1.2013 and also argued that the Tribunal only directed to up-grade the post of appellant being close to the cadre but the official respondents amended the Recruitment Rules of Civil Engineers and Department of Pakistan Railways and illegally included Respondent No. 3 on the promotional hierarchy of Civil Engineering structure also stressed that Respondent No. 3 cannot be assigned seniority in BS-17 retrospectively and amendment for granting BS-18 and above by reckoning seniority from the date of initial appointment as Mining Engineer and he can only be given seniority in BS.17 from the date of impugned Notification dated 6.5.2011 and given promotion in BS-18 prospectively without disturbing practice in vogue.
7. While conversing the above submissions, the learned counsel for the respondents have mainly argued on the premise that Respondent No. 3 was placed in the seniority list of Sr. No. 2 senior to the appellants on the strength of Notification dated 6.5.2011 promulgated on the basis of judgment of this Tribunal dated 24.5.2010 which made foundation of amendment in the Pakistan Railways Civil Engineering Rules, 2000. It is further argued that the judgment of the Tribunal was never challenged by any one before the appellate forum which attained finality. Further submitted that Notification dated 15.9.2000 and 3.3.2005 were amended vide SRO dated 6.5,2011 to include the post of Assistant Engineers Mining in the said Rules and resultantly Respondent No. 3 represented for fixation of ante dated seniority with consequential benefits.
8. Arguments heard and record perused.
9. After having perused the record and critically analyzing academic deliberations of counsel of both the parties we are of the considered view that the pivotal points to be decided by this Tribunal relates to; firstly the amendment made in Rules, 2020 ibid acclaimed by the respondents pursuant to Notification dated 6.5.2011 which has been promulgated statedly on the basis of the judgment of the Tribunal dated 24.5.2010 on an appeal by respondent No. 3 wherein the appellants were not arrayed as respondents being necessary parties and resultantly two different service cadres/groups were clubbed in one cadre for the purpose of seniority and promotion whereby Respondent No. 3 was included in promotional hierarchy of Civil Engineering Structure which in our view is wholly illegal and untenable in law being both cadres possessing absolutely distinct nature of job, different qualifications and criteria of appointments. Secondly, the anomalous situation emerged subsequent to Notification dated 6.5.2011 significantly because of wrong and erroneous interpretation of the said Notification which was implemented by the respondent-Department retrospectively w.e.f. 2.2.1994 (the date of appointment of Respondent No. 3) to chalk out seniority list for the purpose of promotion by which Respondent No. 3 was illegally given ante-dated promotion in BS-18 on 1.1.2002 being negation of law of interpretation on the subject.
10. It is well settled and established canon of law that the notification/rules/statute cannot be implemented retrospectively affecting the rights. It is also settled law that undue benefit of amendment of rules which was not available on the relevant date cannot be given. Reliance is placed on WAPDA through Chairman v. Haji Abdul Aziz and others (2012 SCMR 965) it is held that rules operated prospectively and if a right was created in favour of an employee under the old rules, It could not be taken away on the ground that the amended rule had allowed other to complete.
In another judgment similar view has been taken in Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Limited and others (PLD 2016 S.0 398) wherein it has been laid down as under: "Although the Legislature, could legislate prospectively and w retrospectively, such power was subject to certain constitutional and judicially recognized restrictions. According to the canons of constitution, every statute including amendatory statutes was prima facie prospective, based on the principle of nova constitution futuris forman imponere debet, non praeteritis which means (a new law ought to regulate what is to follow, not the past); unless it was, given retrospective effect either expressly or by necessary implication. In other words, a statute was not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute was to affect vested rights, past and closed transactions or facts or events that had already occurred."
While recognizing to the effect of change in law by virtue of amendment in the rules, the Hon'ble Supreme Court of Pakistan has observed in Chairman, FBR, Islamabad and another v. Mrs. Naureen Ahmed Tarar and others (2020 SCMR 90) has taken a following view: "Change in law by the amendment in the Rules, caused adverse consequences for the probationers ... such consequences infringed the legitimate expectancy of the serving probationers by altering the legal dispensation under which firstly, their service rights were determined for the future and secondly, for the rules under which the probationers commenced their probationary training. Though procedural in content, the amendment affected a substantive right of the probationers, namely, their seniority in the batch and in this respect by altering an accrued status, the said amendment had retrospective effect ... Resultantly it was burdensome to implement the amendment upon the probationers who had already entered their probation and period prior to the enforcement of the said amendment ... Additionally one of the examinations envisaged in the Rides, namely, the Specialized Training Programme (STP), could not be held ... such failure made the categorization of the total result on the basis of number of examination attempts to be lopsided ... Circumstances of incomplete examinations to test the probationers and the enforcement of the disputed amendment to an ongoing probation and course, had rusted in harsh and untenable consequences both in law and fact ... Supreme Court held that Rules in their (un-amended) for as at the commencement of the probationary period in July, 1998 shall remain applicable for reckoning the seniority of the probationers on the completion of their probation, and the Federal Government needed to apply its mind to remove the salient anomalies highlighted by the Service Tribunal."
The august Supreme Court of Pakistan in its famous judgment titled Tariq Aziz-ud-Din and others reported in 2010 SCMR 1301 held as under: "...Fair and transparent discretion, exercise of--Principles---Action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion--Arbitrariness in any manner is to be avoided to ensure that action based on discretion is fair and transparent--Discretion is to be exercised according to rational reasons, which mean that; there be finding of primary facts based on good evidence; and decisions about facts be made for reasons which serve the purpose of statute in an intelligible and reasonable manner--Actions which do not meet these threshold requirements are considered arbitrarily and misuse of power--Discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions required for exercise of such power with the scope of law--All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and instruments regarding exercise of discretion--obligation to act fairly on the part of administrative authority has been evolved to ensure rule of law and to prevent failure of justice."
In other cases Senior Member BOR and others v. Sardar Bakhsh Bhutta, and another (2012 SCMR 864) and Zakaria H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi (2003 SCMR 271), law affecting rights cannot operate retrospectively.
11. The judgments relied upon by the learned counsel for the respondents are not applicable to the facts of the case being on different facts and subject matter.
12. For the foregoing reason, all the appeals are accepted. The impugned orders are set aside. The Respondents Nos. 1&2 are directed to place the appellants at their proper slot of seniority list over and above Respondent No. 3 as guaranteed by law. No order as to costs.
13. Parties be informed accordingly.