S. ABDUL JABBAR KHAN (CHAIRMAN).-Syed Kabir Hussain Shah and Bashir Ahmad Kamlana both Extra-Assistant Commissioners, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded Secretary to Government of the Punjab, S. G. A. & I. Department, Member (Revenue), Board of Revenue, Punjab and other E. A. Cs. As per lists Annexure 'A' as respondents.
2. By virtue of these appeals, they have prayed that the impugned Seniorty list and impugned orders dated 12-6-1980 and 2-3-`1981 be set aside as far as these relegated the appellants to junior positions to the contesting respondents.
3. As the point of law involved in both the appeals is identical in nature with a minor variation of facts we will decide these appeals by one single judgment.
4. Brief facts of the case regarding Syed Kabir Hussain Shah is as under: Appellant joined service as Naib-Tehsildar in 1956 and promoted in the rank of Tehsildar in the year 1966. As Tehsildar the appellant had been senior to all the promotees among the contesting respon--dents. Respondents No. 1 took up the case of promotion of appel--lant and respondents Nos. 3 to 14 who were originally junior to appellant as Tehsildar for their promotion to P. C. S. Executive Branch. Respondent No. 2, Board of Revenue recommended the appellant for promotion and the same was endorsed by the Government also. The case of the appellant alongwith contest- -ing respondents Nos. 3 to 14 was approved by the Public Service Commission for promotion to P.
C. S. Executive Branch. Unfor--tunately before notification for promotion could be issued in favour of the appellant, and appellant stood retired from service under M. L. R. 114, w. e. f. 18-3-1972. The contesting respondents 3 to 14 were promoted as E. A. Cs. On the basis of the same recom-- mendations of the Public Service Commission in which the appel--lant's case was also recommended. The appellant filed an appeal before this Tribunal against the order of his retirement under M. L. R. 114 and also filed a revision petition before the Review Board, established under M.L.O.
23. The appellant's review petition was accepted and order of his retirement was set aside and thus he was re-instated in service. After his re-instatement the appellant was promoted as E. A. C. Through select list 'A' vide notification dated 1-8-1978, Annexure --B'. Seniority list of E. A.
Cs. Annexure C as stood on 31-12-1977, was issued by respondent No. 1 wherein the appellant's position was not shown. As there was nothing in the list about the appellant's position, therefore, the appellant concluded that his case was under consideration. When another gradation list was published the appellant found that his name was shown at serial No. 292 although he was eligible to be placed at serial No. 44 immediately above Mr. Majid Akhtar one of those Tehsildars who were junior to the appellant and had been approved for promotion alongwith the appellant and others.
This gave the appellant a cause of grievance, who submitted a representation on 9-3-1980, Annexure IC/l,' against the said fixation of seniority. However, the Government vide their letter dated 12-6-1980. Annexure `E without assigning any reason, rejected the appellant's representation. Hence this appeal.
5. The case of Bashir Ahmad Kamlana is also stated as under :- The appellant joined service as A Class Naib-Tehsildar on 5-6-1962, in Sargodha Division. His case was recommended alongwith his other colleagues including contesting respondents namely Shahid Hussain and Muhammad Siddique (promotees) to the cadre of E. A. Cs. Against selection merit quota reserved under the rules of Naib-Tehsildars. As a result of the aforesaid selection the appel--lant's name was duly approved by the Public Service Commission for promotion and appointment as E. A. C. Necessary recommenda--tions were communicated by the Public Service Commission. Vide their letter dated 30-11-1971, to the Government. Unfortunately the appellant stood retired under M. L. R. 114, were. f. 18-3-1972, before the said recommendations were to be implemented. However, fourteen Naib-Tehsildars including ten junior to the appellant, were promoted as E. A. Cs. Out of selection quota mentioned above. The appellant filed appeal before this Tribunal as well as a petition before the Review Board. His case in the Review Board was found justified and he was re-instated in service, vide notification dated 21-3-1978. After his re- instatement appellant agitated before the Government that he should be restored his seniority vie- a-vie his junior colleagues as he was all along senior to them in the lower grade and at no time was superseded by them. The representation, of the appellant was partially accepted inasmuch as restoring his seniority vis-a-vis Junior Tebsildars who were promoted as Tehsildar during the period when the appellant was out of service, due to his retirement under M. L. R.
114. His place in the integrated seniority list of Tesildars was given at serial No. 35-A, as stood on 1-7-1971, and in this way the Department recognized the principle that appel--lant be not allowed to suffer for an illegal act. However, the appel--lant event on making submissions through representations for his ultimate seniority in the higher grade also but the same did not find favour with the respondents for reasons best known to themselves and his plea was rejected en 2-3-1981. Hence this appeal.
6. While the point of law involved is identical in nature in both the cases the only difference between the two with regard to the fact of the case is that Syed Kabir Hussain Shah's other colleagues were immediately induct--ed into tire posts of E. A. Cs. Whereas in case of Bashir Ahmad Kamlana his other colleagues had to wait for two years before they were promoted as E. A.
Cs. o n the basis of the recommendations of the Public Service Com--mission which had cone into existence on the eve of retirement of Bashir Ahmad Kamlana under M. L. R. 114.
6-A. W4 have heard the learned counsel for the appellants as well as for the respondents assisted by the representatives of the Departments and have perused the record of the case carefully with their assistance. Learned counsel for the appellants its both the cases have argued that main-- stay of the respondents' case for deviation from the settled principal of seniority as envisaged in the Explanations I to III of the P. C. S. Executive Branch Rules, 1964, Tehsiidari and Naib-Tehsildari Service Rules as well as Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, is an office memorandum dated 5-7-1978 of the Cabinet Secretariat, Establishment Division, Government of Pakistan a copy of which was sent to all the Chief Secretaries to Provincial Governments. According to the learned counsel the rules laid down for purpose of seniority so mentioned above make it incumbent on the respondents to place a person senior in lower grade and senior as well in higher grade unless he has been super--seded, irrespective of the date of promotion to the higher grade. It has been strongly urged that the respondents had no right as well as jurisdiction to act upon the office memorandum issued by the Establishment Division to all the Chief Secretaries of the Provincial Governments, when statutory rules were there for their guidance.
It has been further urged that assum--ing without conceding that this letter had some persuasive force, it has been pointed out that the paragraphs D & E of this memo. Are self-contra--dictory. It has been further urged that the respondents have used this office memo. At their own whim and fancy, which is apparent from the cases of Syed Hasnaat Ahmad, Sardar Manzoor Ahmad Leghari, Khawaja Mahmood Sadiq, senior members ,of the P. C. S. Of the same cadre, who were re-instated in service under M. L. O.
23. According to the learned counsel in the cases of the said officers despite the office memorandum so relied upon in case of the appellants, these conditions were ignored and they were shown senior to their colleagues who had been promoted to Grade 19 earlier and these senior officers were placed senior to those officers irrespective of the fact that they had been promoted to Grade 19 from later dates. On the other hand learned counsel for the contesting respondents as well as learned District Attorney have taken shelter behind the said office memorandum so quoted above and have submitted that as the said Memorandum having been issued from the Establishment Division of the Federal Government, therefore, respondents were bound to act upon the same it has been further urged that office memorandum being later in date than the rules so promulgated by the Governor would super--sede the said statutory rules and the action taken by the respondents was unexceptionable. Learned D. A. Came forward with an argument that as the appellants have been re-instated under M. L. O. 23, therefore, it would be fair to presume that the order of fixation of their seniority has been made under the said M. L. O. In view of the above it was urged that the action so taken against the appellant was protected by the P. C. O., 1981.
7. We have given our anxious thought to all the points raised by the parties before us and would advert to each of these as under :- .
"What we find is that if there would have been no letter/office memo. From the Establishment Division addressed to all the Chief Secre--taries to Provincial Governments the normal rules would have been the guiding principle for fixation of seniority of the appellants. Therefore, what we are required to adjuge is whether this memo. Would prevail over the rules of the seniority formulated by the Governor from time to time or not. It is settled principle of law that an office memo. Or a letter from howsoever high authority it may be, will have no effect against the statutory rules promulgated by the Governor in this behalf. Reliance is placed for the principle so enunciated by us as above on the law laid down as under :- PLD 1961 SC 166 at page 175.
1981 PLC (C. S.) 422.
Their Lordships of the Supreme Court in. The above noted authority have observed as under :-- "It follows from the foregoing discussion that the letter of the Chief Secretary dated the 16th February, 1949, conveyed an instruction which contravened the provisions of the statutory Rules of 1943, which were then and are still in force. The concession of seniority which was by this letter withdrawn from "war service candidates appointed to non-reserved vacancies" was one which was provided for them by the Statutory Rules of 1943, and could not be withdrawn by a mere instruction. If the Government had desired to make the change, they could only have done so by amending the rules or making a fresh rule, and the question might then have been raised whether the withdrawal of a concession could be made with respect to persons already in service with retrospective effect."
This decision of the highest authority in the realm has been consistently followed by all the Courts of this country on this issue. When confronted with this situation the learned counsel for the respondents could not pro--duce any authority to the contrary to the same. In view of the above we are of the considered opinion that this memo. So relied upon by the respon--dents against the appellants would be hardly of any avail to them and the statutory rules so laid down by the highest rules making authority i. e. Governor, would hold the field. It would be proper to mention at this stage that according to these rules which have always been acted upon for fixation of seniority, the person senior ire lower grade will continue to be senior in higher grade irrespective of his date of promotion in higher grade unless it is established that he was considered all along with his juniors and was superseded. We have satisfied ourselves from the record of this case that Syed Kabir Hussain Shah as well as Bashir Ahmad Kamlana were never superseded by their juniors at any stage of their services. Therefore, under these rules they are entitled to retain their basic seniority as E. A. C. Irrespective of their subsequent date of promotion as E. A. Cs.
8. We have also carefully taken into consideration the point raised by the learned counsel for the appellants about the self-contradictory nature of the office memo. So relied upon by the learned - counsel for the respondents and find that the objection so taken in this regard by the learned counsel for the appellants is not without force. It will be useful to reproduce paragraphs D and E so as to expose their inherent contradictory stand. Para. D runs as under "Seniority in Grade.-The re-instated persons may be allowed normal seniority in the grade in which they were serving at the time of retirement. In other words, they would be placed in the same position in the grade, which they would have enjoyed had there been no retirement".
'Para. E.--A person reinstated in service may be considered far promotion on the basis of their seniority in the grade held by them in accordance with normal rules. "
The second part of this paragrah states "On promotion to higher grade they may be allowed pay and seniority from the date of their regular appointment to the post in the higher grade. There will be no automatic promotion on the principle of next below the rule."
A cursory reading of these lines would show that only clause which it has introduced is that the seniority of persons although will be in accordance with normal rules but the same would take effect from the date of regular promotion in the higher grade. This to our mind is blowing hot and cold in the same breath. It is absolutely clear from the earlier quotation of this para. E that a person once reinstated will be shown senior according to normal rules of seniority so laid down by the Governor of the Province to his juniors although the said juniors had gone ahead due to his retirement under M. L. R.
114. While accepting this principle,' it would be self---contradictory to say that he should be deprived of that basic seniority when he is entered to higher grade although latter due to the reasons beyond his control. If we accept the second part as stated above this will lead to anomaly as well as denial of the application of normal rules. What we are further surprised to find that document is being heavily relied upon by the respondents is only a letter meant for information and not for com--pliance. This is apparent from the endorsement made to all the Chief Secretaries to Provincial Governments by the Federal Government.
9. We are also required to take care of established practice that it is for the Provincial Government to make rules with regard to the terms and conditions of service etc. Of their civil servants and it is for the Federal Government to do the same with regard to their employees. It would be illogical to accept that Federal Government 'would start laying down policies and rules for the Provincial Government which for all purposes is governed by a Governor and he has been authorised under the law to make rules for his employees. In this manner we are in full agreement with the arguments of the learned counsel for the appellants that office memo. Which the respondents have considered as anchor of their case sheet has no legs to stand so far as the appellants are concerned. It was a piece of information to the Chief Secretaries of the Provinces who had .To see whether this memo. Was in consonance with the statutory rules so laid down by the Governor or not. In case he was so convinced that- the policy settled by this memo. Was more realistic than rules made by the Governor, he could easily move the Governor to amend the rules and then he could follow the same therefore we have no hesitation to hold that this office memo. Has been relied upon by the respondents without any legal justifica--tion and the sine quo non for them would have been either the amended statutory rules or to ignore this memo. Without any demur.
10. It is interesting to point out that while going through the record of the cases of Messrs Syed Hasnaat Ahmad, Kh. Mahmood Sadiq and Manzoor Ahmad Leghari of this service we find that the respondents did not follow the much disputed office memo. And rather followed the normal rules so laid down by the Governor. We are fortified in our observation by the perusal of seniority list of ex-P. C. S. Officers Grade-19 at page-143 of the file of S& GAD bearing No. C-1-2-41/74. From this list it becomes clear that the said three officers were promoted to Grade-19 were. f. 19-10-1978, but they have been placed senior to Messrs Ahmad Kamaluddin, Z. A. K. Karim. Muhammad Anwar Shariq, Ghulam Rasool Azhar and Ali Zulqarnain, who were promoted in April and May, 1978.
11. When we look into the case of Bashir Ahmad Kamlana the appellant, we find that this officer was conferred seniority according to normal rules in the grade of Tehsildar over the contesting respondents but when it came to the application of these rules to his claim of seniority over the contesting respondents in the next higher grade on the same principle, it was declined without assigning any reason.
12. All this, as discussed above make it crystal clear that the respon--dents did not consider the office memo. As sacrosanct as it is being argued today by the learned counsel for the respondents before us.
13. With regard to the arguments of the learned D. A. That the present appeal was hit by P. C. 0., 1981, as being an act taken under M.L.O. 23, it would be sufficient to say that the perusal of M.L.O.-23 itself reveals that it was only concerned with the reinstatement of officers retired from 1972 to 1977 and does not speak of fixation of their seniority in any manner whatsoever, therefore, we have no hesitation to repel this argument as being without any force.
14. Before parting with this case we will like, to observe that the case of direct recruits who are also confessing respondents in this case will be subject to the case of the promotees contesting respondents whom we have decided to declare junior to the appellants in view our detailed discussions made in the earlier part of our judgment. The direct recruits who are junior to the promotees contesting respondents, will be placed junior to the appellants who have been declared senior to the promotee contesting respondents.
15. The result is we accept the appeal, set aside the impugned seniority list and hold that the appellants will be placed senior to all the contesting respondents in this case in accordance with normal rules pro--mulgated by the Governor from time to time. The office memo. Dated 5-7-1978, so relied upon by the respondents in this case will have there--fore, no legal effect on the seniority of the appellants. However, there will be no order as to costs.