ABDUL HAMID CHAUDHRY (MEMBER). -- Syed Asghar, Deputy Director, Para-Veterinary Training of Villagers, Rawalpindi, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order dated 25-7-1981, as well as of 4-1U-1981, and has impleaded Government of the Punjab, through Secretary, Livestock and Diary Development Department, Secretary to Government of the Punjab, Livestock and Dairy Development Department, M. H. Qareshi, Deputy Director Livestock and Dairy Development, Cooper Road, Lahore and S.W. Hamid, Information and Publicity Officer,. Livestock and. Dairy Development Cooper Road, Lahore as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 25-7-1981 and order dated 4-10-1981 be set aside and the original seniority of the appellant as bestowed upon him in 1974, be restored.
3. Brief facts of the case are that the appellant joined services on 28-4-1958 as Officer Incharge, Rearing of Livestock through Private Enter--prises under Government supervision and assistance.
However, the appellant later on continued in service in Class I (Sr.) in various capacities and was placed as senior in the seniority list of 8-9-1977 at No. I against res--pondents Nos. 3 and 4 on 16-6- 1979 his seniority was also maintained where his position remained undisturbed Similarly, in 1980, the same order of seniority was maintained but it was only in the year 1981, that on the representations of the respondents, his seniority has been upset. First of all the respondents took away the regularization of the appellant from 1958 and brought it to the year 1970 and later on, on the strength of this reversal, he was placed junior to the respondents. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and the learned counsel for the respondents and have perused the record of this case carefully with their assistance. It has been submitted on be--half of the appellant that the appellant had been shown senior all along till the year 1980, as senior in all the seniority lists which were never challenged by the respondents and thus, had attained finality, therefore, the respondents could not upset the seniority of the appellant at this belated stage i.e. In the year 1981, on the representations of the respon--dents. A grievance has been made that the action of the respondents was unilateral without affording any opportunity to the appellant of being heard. The appellant based his claim on the Notification No. 1(88)-SOAHE; 70-Part II, dated 24-7-1974, whereby his services were declared to have been regularised retrospectively from 28-4- 1958, by the order of the Governor ef the Punjab through Mr. Ijaz Hussain Malik, Secretary, Livestock and Dairy Development Department, This notification was made in pursuance of late West Pakistan Government S&GAD's Notification No. SORIIl--1-40/69, dated 28-2-1970. The appellant has further submitted that his appointment was made in pursuance of the recommendations of the Public Service Commission which observed that he was being accommodated to view of the vacancy caused by Dr. Abdus Salem Akhrar and in case any other person was selected against the aforesaid vacancy the appellant will not claim any right of seniority or permanent retention against the subse--quent selection of the Public Service Commission. The appellant has made a grievance of the fact that no further selection was made in this regard as Mr. Abdus Salam Akhtar never came back and, therefore, the appellant was the rightful person to be inducted in the vacancy so caused. Learned counsel for the appellant has made a grievance that respondent has misinterpreted the notification of 28-2-1970, which according to the learned counsel, as a matter of fact the aforesaid notification was never meant for measuring the seniority, but only a measure of consulting the Public Service Com--mission. He has also challenged the claim of respondents Nos.
3 and 4 that there was a break of service in the case of the appellant as according to the appellant's counsel the said break was duly condoned as a special case. On the other hand learned District Attorney as well as learned counsel for respondents have submitted that notification of 1974, which is being considered as sheet anchor of the case for the appellant, has no kegs to stand as the same notification was made only by the Minister belongs without the approval of the Governor which was a must as the appellant to N.P.S-18. It was further argued that the Minister had no right to make this notification as the same ran counter to the notification of Z8-2- 1970, so relied upon by the Minister. It has been further urged that if the illegal, uncalled for and arbitrary type of notification has been made by the Minister who was not the competent authority, the same could be res--cinded by the successor-in-office when it was found that the said notification had no basis and justification.
5. To assess the claim of the appellant it would be useful to re--produce the service particulars: Keeping this Bio-data in view we have to look into the history of the appellant's service as well. We cannot remain oblivious of the fact that appellant went abroad without permission of the Government or any leave for the same and remained there for a very long period. This, is borne out from the letter dated 27-11-1959, from S. M. Sarwar, Director Animal Husbandry, West Pakistan, Lahore, to the Deputy Secretary to Government of West Pakistan, Planning and Development Department, Lahore, on the subject of "Resignation of Dr. Saeed Asghar". In this letter, late S. M.
Sarwar brought to the notice of Government that the appellant after leaving his resignation in the hands of some one in the office on 15-10-1959, had completely disappeared. Similarly Mr. Z. A.
Hashmi vide letter dated 18-5-1961, also mentioned this instance and observed that appellant was offered a Class I post although men with same qualifi--cations were available in the country in lower services some in Class III and some in Class II, yet the appellant did not join his parent Department and accepted the offer with a reservation. It was on 12-21962 that Mr. M. A. Kazi, Section Officer, A.H.I., wrote a letter to the Director of Animal Husbandry, West Pakistan, Lahore, that as the appellant was absent from duty without leave the Government would treat him as a fresh entrant in WPAHS Class I purely as a stop-gap arrangement vide order dated 21-1-1961. With the approval of the West Pakistan Public Service Commission. This decision was conveyed on 11-1-1961 by Mr. S. I.
Haq Secretary, Government of Pakistan, Agriculture Department. Wherein it was stated that the Governor West Pakistan was pleased to cancel pare. 2 of West Pakist in Government's Notification No. 1(1)-4-SOAHI-VII-P&D/6CJ, dated 21-11-1960, and Saeed Asghar appellant was to .Be treated as a fresh recruit for all intents and purposes. It is also on tie record that in the year 1973, the Secretary, Punjab Public Service Commission, Lahore, wrote a letter to the Secretary, Government of the Punjab, Livestock and Dairy Development Department, Lahore, vide its letter dated 8-9-197,'3, that the Punjab Public Service Commission was not in a position 'to regularise Mr. Saeed Asghar Appellant in WPAHS-I (Sr. Scale). In view of the regret of the Commission, they would be prepared to consider 'his case after he gets two more annual reports.
6. We have the benefit of going through the entire file of the, Department particularly looking into' the noting which culminated into the notification of 1974, conferring upon the appellant, a retrospective regularization of his service since 1958 and find that the direction on the Public Service Commission in his case were circumvented by accelerating two more reports in order to accommodate the appellant. We have also satisfied ourselves with regard to the objection of the respondent about the sanctity of the notification of 1974, and find that the same is borne out from the record, this notification was never put up before Governor and was issued with the approval of the Minister Incharge by the Secretary at his own level.
7. We have also looked into the basis for reversal of the earlier notification by the new Minister Incharge and find that his decision is based on the requirement of notification dated 28-2-1970, published on 7 March, 1970, which was also made basis for the earlier notification of 1974. In this notification it has been laid down as under:
(a) Every person appointed on ad hoc basis to any service or post under the rule-making authority of the Governor of West Pakistan whose appointment to such service or post has not been regularized for any reason shall, with effect from the date of this notification, be deemed to have been regularly appointed to such service or post, provided that:----
(i) such person has continuously served in such service or post, as the case may be, since 1st January, 1966 ;
(ii) such person possesses the qualifications prescribed for such service or post as the case may be, at the time of his ad hoc appointment thereto; (i.e) such person has in the opinion of the West Pakistan Public Service Commission, a satisfactory record of service;
(iv) such person has not been previously rejected by the West Pakistan Public Service Commission, for such service or post except in the case of a person who could riot be selected for want of a vacancy under the regional representation formula ;
(v) such person was appointed in accordance with the ratio prescribed in the relevant rules for appointment by initial recruitment vis-a-vis promotion to such service at post ; and
(vi) the West Pakistan Public Service Commission has in respect of the appointment or post held by, such person, not recommended any other person.
(b) The persons whose appointment is regularised under the provisions of these orders, shall count their seniority in the service, grade or post to which they are, regularly appointed were. f. 1-1-1970.
The appellant could only be regularised if he fulfilled the conditions so laid down in the notification.
In the case of the appellant, what we find is, that although this notification was made basis for the notification of 1974, yet the terms so laid, down therein were completely violated. We have given the history of the appellant's service in the earlier part of our judgment and have observed that he remained outside the country for a couple of years and by the notification of 21-1-1961 he was treated as fresh recruit for all intents and purposes and that on ad hue basis. The case of theth appellant was duly examined when he appeared alongwith contesting respondents before the Secretary Livestock on 11-1-1981, and it was found that according to the S&GAD notification a person whose appointment was regularised under the provision of said order, shall count their seniority in the service, grade or post to which they, were regularly appoint--ed were. f. 1-1-1970. We also find that the claim of the appellant based on the principle of locus poterttentiae eras not tenable as \the impugned list was the only final list in the field and the rest were tentative in nature. In this' manner it cannot be said that the appellant was not given the right of personal hearing and was condemned without being heard.
8. As stated by us the only crucial point in this case would be whether the earlier notification of 1974 was a notification by the Governor and the notification of 1951, by which the earlier notification was rescind-- ed, was also by the authority of the Governor or not if we would have found that the earlier notification of 1974 was made by the Governor after the case was approved by him, it would not be -possible for us to declare the same without any force as the Governor according to the settled law enjoyed unfettered powers with regard to the legislative matters. Of course if the impugned notification had been made by the Governor him-- self, we would be maintaining the same, on the strength ref section 22 of the General Clauses Act which lays down that the authority which could make a law, order, rule, can also rescind the same. In the present case we are faced with a situation wherein we find that notification of 1974, on which the appellant bases his claim, was never approved by the Governor. In view of this flaw, we are afraid, we cannot consider this notification as sacrosanct. Similarly fresh notification by which the notification of 1974 has been modified, is also by the same authority and not by the Governor this manner we are of the considered opinion that the Government/ respondent was fully competent to make amendment in the earlier notification, when the same ran counter to the basis on which the earlier notification was issued. After arriving at this decision we are satisfied that the seniority list so now framed is fully in accordance with the rules prescribed in this behalf.
9. The result is, we do not fired any merit in the case of the appellant and pried to dismiss the same.
However, there will be no order as to mss.
Name Date of birth'Date of entry in Govt.
Service RegularDate of appointment to Class II Jr./Class I Sr.Date of continuous appointment Class I (N.P. S. 18)
Saeed Asghar21-7-1925 28-4-195828-4-1958 1-1-1970 M. H. Qureshi15-10-192710-6-19501-3-1953 25-3-1969 S. W. Hanuid1-12-1925 1-8-19485-10-1956 25-3-1969