1. S. A. MAHMOOD (CHAIRMAN).-This is an appeal by Mr. Mahmood Khan, Executive Engineer, posted in the West Pakistan Auqaf Deptt. The two respondents, in the case are Secretary, Communications do Works Department, Lahore and Mr. Mohd. Rafique Goheer, Superintending Engineer, Lahore. The appellant has amended the prayer clause to read as follows: - It is prayed that this Tribunal may be pleased to correct the seniority of the petitioner and order its fixation in the seniority list of Superintending Engineers notified by the Department on 29-10-1969 at a place at which his senority was ordered to be fixed by the Governor of West Pakistan in September-October, 1969 on the findings of the Martial Law Administrator Zone `A' (now Zone `C')
2. The appeal has arisen out of the following facts: - Before Integration the combined cadre strength of the Irrigation, B & R and Electricity Departments of Ex-Bahawalpur State was as under :- After Integration, the following posts were allocated between the Irrigation and Communication & Works Depart--ments :- Class I. Chief Engineer1 Superintending Engineers4 Executive Engineers10 Assistant Engineers8 Total23 Class II.Assistant Engineers 25 As against the post of Executive Engineers transferred to B & R Department Mr. Muhammad Ajmal was allocated to that department. Against the five posts in class II, five officers (Mr. Abdul Ghani, Mr. Fazalur Rehman, Mr. Mahmood Khan, appellant Mr. Salim Ullah Chaudhury and Mr. Fayyaz Haider Rizvi) belonging to the former Bahawalpur State were trans--ferred.
3. Later on two other class I (junior) officers; namely M/s. M. R. Goheer, respondent No. 2 and K. A.
4. Fayyaz Ali Khan were transferred from the Irrigation Department to the Communica--tions and Works Department. Mr. Muhammad Ajmal Khan, Executive Engineer of the former Bahawalpur State, who was transferred to the B & R Department along with his post died in 1958. Against the resultant vacancy, Mr. Goheer was confirmed as Executive Engineer. He has since been promoted as officiating Superintending Engineer.
5. Mr. Mahmood Khan, appellant, has been representing to the Government from time to time that he may be confirmed against the post caused by the death of Mr. Muhammad Ajmal Khan in place of Mr. Goheer. His contention was based on the following :-
(1) That two class I (Junior) scale officers; namely M/a. M. R. Goheer and K. A. Fayyaz Ali Khan were transferred from Irrigation Department to B & R Department without their posts and as such they still had their lien in the Irrigation Depart-
(2) That their transfer orders from Irrigation Deptt. to the B & R Department in November 1955, were issued by the Dy, Chief Engineer, Irrigation Department, who was not competent to make such orders. As such their transfers from Irrigation Department to B & R Department were without lawful authority and as such invalid.
6. (3). That as M/s. M R. Goheer and Mr. K. A. Fayyaz Ali Khan, came over to B & R Department without posts and with--out any lawful authority, they had no right to derive any benefit in the B & R Department against any vacancy of Ex-Bahawalpur State and the petitioner had a prior right to be considered for confirmation from 1958 against the vacancy caused by the death of Mr. Ajmal Khan, that is to say that had these two officers not been transferred to the B & R Department without posts illegally he would have been confirmed as Executive Engineer since 1958 against the vacancy in question.
7. The case having remained under- consideration for a long time, was sent to the Governor, who made an order ors 26th December 1966 to the effect that the post of Executive -Engineer from Ex- Bahawalpur State transferred from Irrigation Depart--ment to the C & W Department at the time of Integration should not go to the officers, who were transferred from the Irrigation Department to C & W Department without posts, but this order was made subject to the condition that if the department differed with his views, the advice of the Law Department should be sought. As the department differed, it decided to obtain the advice of the Law Department. The Law Department advised that as the allocation of the two officers of the former Bahawalpur State; namely M/s. M. R.
8. Goheer and K. A. Fayyaz Ali Khan to the B & R Department was made by the Chief Engineer Bhawalpur and not by the Government itself and it lacked subsequent approval of the Government, the transfer of the two, officers was not legal. They further advised that those two officers should be absorbed on all West Pakistan basis, if the Irrigation Department was not prepared to have them back. The case was again submitted to the Governor, but he returned the case with the following Note :- "Governor "Governor has seen and was pleased to observe that the position stated in the note of the Minister differed materially from the position stated in the summary put up by the Depart-- ment for Governor's perusal. Governor, therefore, desired that this discrepancy may be reconciled."
9. The matter was again referred to the Law Department, who held the view that the Chief Engineer of the former Bahawalpur State was competent to issue the transfer orders and that the publication of the notification by the P.W.D. in the official Gazette implied approval to the transfer by the Governor. They also advised that as these officers had brought two junior scale class I posts with them, they should be posted against those posts.
10. As a final decision was not arrived at, and the matter remained pending with the Government Mr. Mahmood Khan moved the Headquarters Martial Law Administrator, Zone `A'. The report of the Martial Law Authorities was that consequent upon the acceptance of Mr. Mahmood Khan's petition by the Governor, his seniority in the department is as if he had been confirmed in December 1958, and thus he should be placed in the seniority list below Mr. Nadir Khan Durrani, who was confirmed against the group sub-cadre vacancy of N.-W. F. P. on 16-6-1958 and promoted as S. E. on 26-1- 1959. When this report went up to the Governor, he passed the following order on 26th December 1969:- Governor has seen. He has directed that the Chief Secretary may take necessary action as warranted by the rules keeping the observations of the Martial Law Authorities in view.
11. The Chief Secretary then called for the comments of the C -& W Department. The Secretary C & W commented as follows:- "The position appears to be that Mr. Mahmood Khan cannot be given the vacancy caused in 1958 by the death of Mr. Ajmal, since the vacancy occurred in the grade of Executive Engineer Class I.
12. According to rule 9 of the Bahawalpur State Service of Engineers Rules, 1934; Mr. Mahmood Khan, who was Assistant Engineer Class II is first to be promoted to the grade of Assistant Engineers Class I before he can become eligible for the grade of Executive Engineer Class 1. Mr. Mahmood Khan contends that according to para. 18 and Annexure to S.& G.A.D. letter dated 25th November 1955, 50 percent. of the posts in senior class I service had to be filled m by promotion from Class II, but this contention is not correct, as the Annexure is not applicable so far as ore-unification officers are concerned and the percentage becomes operative after all the pre-unifica--tion officers in group sub-cadre suitable for promotion have been promoted. Further S. & G. A. D. had advised that under the West Pakistan Service of Civil Engineers B & R Class I Rules, 1967, and the Bahawalpur Service Rules, Mr. Mahmood Khan had first to be promoted as Executive Engineer and he does not get the vacancy in the Executive Engineers' grade caused by the death of Mr. M. Ajmal. Therefore, the question of promoting Mr. Mahmood Khan straightaway to the post of Executive Engineer in the vacancy of Mr. M. Ajmal did arise.
13. Even if Mr. Mahmood Khan is given the post of Mr. M. Ajmal, he cannot be promoted to the grade of Superintending Engineer as all promotions from the grade of Executive Engineer to the grade of Superintending Engineer take place on the basis of date of continuous officiation as Executive Engineer and not according to the date of confirmation. Inter se seniority within the group sub- cadre had also to be main--tained. In view of this, the confirmation of Mr. Mahmood Khan as Executive Engineer will not help, as the date of ofciation is the relevant date for the purposes of promotion and officers of, corresponding seniority in the Executive Engineers' Grade have not been promoted to the posts of Superintending Engineer."
14. On receipt of the above-note dated 29th December, 1969 the Chief Secretary made an order on 1- 1-1970 that Mr. Mahmood Khan should be apprised of the decision as stated by the Secretary Communications & Works Department.
15. At, the request of Brigadier Civil Affairs Martial Law Head--quarters that S. & G. A. D. should look into the case again, the Additional Chief Secretary separately called for the papers from the C & W department and agreed with the conclusion reached by Secretary C & W Department, but not with the reasons for the conclusion. In his lengthy and considered note, Mr. Jafery, the then Additional Chief Secretary, came to the finding that the right of option existed and M/s. Gobeer and Fayyaz Ali Khan's option for the B & R Department were valid. Their transfer to the B & R being in pursuance of their option could not be held to be irregular. Since Mr. Goheer was senior to Mr. Mahmood Khan in the joint cadre of Bahawalpur P. W. D. he had a prior claim to the vacancy, which occurred in 1958.
16. Mr. Goheer's confirmation, was, therefore, right and proper. As to whether the Governor's order dated 26th December 1966 should be implemen--ted or not, the Additional Chief Secretary observed : "The Governor's orders were based on certain data supplied in minutes of the Minister for Communication dated 21-12-1966. The Minister's minutes contained two important submissions ; namely that M/s. Goheer and Fayyaz Ali held a lion in the Irrigation and B & R Departments and that they had been transferred to the B & R Department without corresponding posts. An important fact, namely that the officers' transfers were based on valid option was not brought to the notice either of the Minister or the Governor. It was on the basis of these facts, the Governor held that it was irregular on the part of B & R Department to accept these officers and that they should revert back to the Irrigation Department. However, before making the order operative, the Governor had wanted that the views of the S. & G. A. D. and the Law Department should be obtained. It is clear that the facts submitted to the Governor in December 1966, were incorrect and incomplete. It would pot, therefore, be appropriate to implement the orders dated 26th December 1966 and the Governor be requested to reconsider the case". Mr. Jafery summed up his recommendations as follows:
(i) We inform Mr. Mahmood Khan that his representation cannot be acceded and that,
(ii) Mr. Mahmood Khan would have of course be free to appeal to the Services Tribunal against this decision.
17. On the above recommendation, the Chief Secretary recorded an order that Mr. Mahmood be informed as suggested by Mr. Jafery but directed that the case need not be submitted to the Governor at that stage.
18. The appellant then moved this Tribunal and feels aggrieved by the order by which the case was not submitted to the Governor for final decision.
19. It is obvious from the above facts that the final approval of the Governor has yet to 6e obtained to the action taken in Me case as warranted by the rules. Therefore, the case ought to have been sent to the Governor for his final decision, before it is closed.
20. The learned counsel emphasised that as the transfer of lien of Mr. Goheer respondent was not made by the Government or the competent authority, his allocation to the B & R is irregular and even illegal. In this connection, opinions have been expressed that as posts in Class I were not carried by them to the B & R their transfer was irregular. This view ignores the circumstances in which the splitting- up of the B & R and Irrigation Departments of the Bahawalpur State took place.
21. It is apparent from para. 5 and Appendix V of the report of Council of Administrator of West Pakistan that B & R and Irrigation Departments were combined in the Bahawalpur State and it was decided to separate the cadres of B & R and Irriga--tion, for which purposes allocation to the B & R and Irrigation had to be done according to the wishes of the officers, taking care that transfers are made in such a way that work is not dislocated. It is not denied that both Mr. Goheer and the appellant opted for allocation to B & R and they both stand allocated to the B & R. The appellant objects to the allocation of respondent No. 2 to the B & R on the grounds first that it was not ordered by the com--petent authority and secondly that there was no post carried with him to the B & R against which- hr-, could be allocated. When Mr. Goheer belonged to the Bahawalpur State Service and was senior to the appellant and he exercised an option for allocation to the B & R he had to be allocated to the B & R in preference to the appellant, who was junior to him in that service. It has been argued that the allocations made by the Deputy Chief Engineer, are irregular and illegal, but allocations had to be decided according to the wishes of the officers and were not dependent on allocation by the appointing authority. Of course it was necessary to see that too many officers did not go to one department but that contingency did not arise in the case of Mr. Goheer whose choice had to be preferred to that of the appellant, and therefore, the option exercised by Mr. Goheer was a valid ground for his allocation to the B & R to which no objection can be taken. Even if there was an irregularity in the matter of allocation, that irregularity can always be condoned by the Government by endorsing the action of the Deputy Chief Engineer in making the allocation of all the officers in this case. We cannot told the allocation of Mr. Goheer to be illegal or irregular on the grounds urged before us. Mr. Cheema refers us to the following findings of the Martial Law Authorities to show (1) that had Mr. Mahmood Khan been confirmed in 1958 as directed by the Governor in 1966, he would have drawn the benefit of promotion as S. E. along with certain other officers, and would have ranked senior to Mehdi Shah, serial No. 3, (it) that the group sub-cadre vacancy in Class I caused by the demise of Mr. Ajmal of the former Bahawalpur State Service had to go to the eligible officers of Class II in that service according to the instructions referred to above and confirmation of Mr. Goheer against this post, in spite of the fact that he had a lien in the Irrigation Deptt. was unwarranted, (M) that the orders passed by the Governor in December 1966 prior to the promulgation of the West Pakistan Engineering Service Rules, 1967 are to be implemented in accordance with the instructions enforced at the crucial time, i.e. December 1966 contained in the said rules, (iv) that consequent upon the acceptance of Mr. Mahmood Khan's petition by the Governor, his seniority in the department is to be fixes as if he would have been confirmed in December 1958 similar to the case of officers as above. He wilt be placed at serial No. 18 of the said seniority list retrospectively promoted w. e. f. 19-11-1959, after Mr. Nadir Khan Durrani, who was confirmed against N.-W. F. P. post, fell vacant en 16-6-1958 and promoted as Superintending Engineer on 26-1-1959 and (v) that the order of the Governor, which was endorsed by the Law Department and S. & G.A.D. may be upheld and Mr. Mahmood Khan suitably compensated for the denial of the rights of his promotion for the last ten years.
22. As to the above contentions, it is pertinent to mention that the order of the Governor dated 26-12- 1966 was a confidential one. It were not conveyed to the appellant or to the parties and it was not, therefore, necessary to implement it unless is remained a final order to be carried out by the executive authority. It was not intended to be a final order and was made subject to altera--tion in case the department differed with the Governor. The Governor's final order is yet to be obtained.
23. That would finally determine the fate of the appellant's representation to the Government.
24. As to the observations of the Martial Law Authorities regarding the seniority of Mr. Mahmood Khan, we find it unnecessary to deal with here. The basic question involved is not of seniority of the appellant over Mr. Goheer, respondent No. 2, but is one of allocation to B & R or the Irrigation Depart--ment. The appellant objects in substance to the allocation of Mr. Goheer to the B & R and claims that if he had been allocated to the B & R in preference to Mr. Goheer, and if he had not been allocated to the B & R, he (appellant) would have been promoted as Superintending Engineer by now. Before us it has not been contended that the appellant is basically senior in service to Mr. Goheer, respondent No. 2, but we have no doubt that in Bahawalpur Service, Mr. Goheer was senior to the appellant. In the combined seniority list of the P. W. D. as on 13-10-1955, Mr. M. R. Goheer is shown among Assistant Engineers in Class I, whereas the appellant is shown among Assistant Engineers in Class II, Class I being senior to Class II.
25. It is urged that the findings of the Martial Law Authorities could not be superseded or annulled by the civil authorities, but we are unable to give effect to their recommendations as they are not based on any Martial Law Order and are not shown to have been made within the competence of the functions of the Martial Law Authorities, but objection is taken that the Additional Chief Secretary did not give effect to their findings. We agree with the Chief Secretary and the Additional Chief Secretary that the rights of the parties had to be decided in accordance with the civil law and not the recommendations of the Martial Law Authorities, which being in the nature of recommendations have no binding effect since they were also made in the absence of and behind the back of Mr. Goheer and without hearing him.
26. It is next urged that as the Additional Chief Secretary did no hear the appellant before making his order, that order is invalid. The order is, however, of executive nature and it was not necessary in fact to hear the appellant before making the order. Of course the parties could be beard before making the order.
27. It is further urged that a there was no corresponding post against which Mr. Goheer could opt, he could not be allocated to the B & R and his allocation is invalid. The learned counsel for appellant supports his contention by a draft letter of Mr. S. K. Baluch dated 10th March 1970. We cannot accept in the first instance that there was no post against which Mr. Goheer was allocated to B & R and if there were no post, the appellant could not even be allocated to the B & R. We have to presume that posts were available and normally when allocation taker places are not created either in temporary or permanents capacity if they do not exist, for the allocated officers to hold the posts.
28. In such circumstances what is necessary is to create posts and not that the allocation becomes illegal or invalid.
29. The appellant feels aggrieved by the confirmation of respondent No. 2 against the post of Mr. Muhammad Ajmal in the rank of Executive Engineer and claims that he and not respondent No. 2 should have been confirmed in accordance with the Circular of S. & G.A.D., dated 25th 'November 1955, but we regret to say that we do not see the force of the contention. In any case, we have no jurisdiction in this matter, and it is not for us to hold confirmation either valid or invalid.
30. For the reasons stated above, this appeal succeeds to the extent that we direct that the case will be sent to the Governor for his final orders. We leave the parties to beartheir own costs.
31. Irrigation DepartmentC & W Department 9 posts of ExecutiveOne post of Executive Engineers, 8 posts in Class IEngineer. 5 posts in (junior), 20 posts in Class IIClass II of Assistant of Asstt. Engineers.Engineers.