' MIAN BURHANUDDIN KHAN, J.-This appeal is directed against the judgment and order of the Punjab Administrative Tribunal, dated 22-10-1979 passed in Appeal No, 117/942 of 1977.
2. The appellants who were the members of the Provincial Civil Service had filed an appeal before the Punjab Administrative Tribunal for the fixation of their seniority as against the respondents and their absorption in the service, which was dismissed.
3. The case of the appellants is that before Partition P. C. S. (Executive) was a formally constituted service governed by its own rules of recruitment. Outside these rules and purely as an ad hoc arrangement adopted for the purpose of reducing the heavy pendency of judicial cases, lawyer Magistrates were recruited in two batches, one in 1954 and the second in 1959. They continued in service with an eye on the separation of the judiciary from the executive. The scheme for separation of the judiciary in the Punjab having been abandoned, the question of their future placement came up for consideration of the Government for a sufficiently long time.
4. In the West Pakistan Civil Services (Executive Branch) Rules, 1964 enforced on 16-12-1964, rule 10 provided for absorption of lawyer Magistrates etc. The Governor was authorised to absorb in the service, inter alia, the lawyer Magistrates considered suitable for absorption and assign the persons so absorbed suitable seniority in the service which shall not in any case be earlier than their respective dates of appointment as Additional City Magistrates, Deputy Collectors or lawyer Magistrates as the( case may be. It is stated that in consultation with the Public Service Commission and in exercise of this power the Governor passed an order on 26-10-1966 absorbing the lawyer Magistrates and other officers of the former Karachi Administration in the P. C. S. Executive Branch. Their posts were also included in the P.C.S. Cadre. The orders regarding their inter se seniority as also the seniority vis-a-vis P. C. S. Officers and other terms and conditions of their absorption in the P. C. S. Executive Branch were deferred.
5. On the subject of seniority, the Law Department advised the Public Service Commission concurred that the seniority of lawyer Magistrates could not be taken to a date earlier than 26-10- 1966-the date of their entry into service. The Governor on 4-5-1970 ordered accordingly. The lawyer Magistrates appealed to the Punjab Civil Services (Appellate) Tribunal which accepted their contention on 11-5-1971, quashed that order and suggested that they could be assigned the seniority from the date of appointment the date of integration or a subsequent date keeping in mind all the circumstances and facts of the case.
6. The appellants feeling aggrieved by the aforesaid decision, invoked the Constitutional jurisdiction of the High Court by on the establishment of Administrative Tribunal the petition abated. Thereafter the Government in compliance with the order of the Tribunal and exercising the same powers afresh, adopted on 24-12-1976 the principle of continuous officiation in the grade to be the deciding factor. This aggrieved the appellants as the respondents who were the lawyer Magistrates got full benefit of their service from the date of their induction into Government Service as lawyer Magistrates i. e. 1954 in the case of the first batch and 1959 in the case of the second batch. They challenged this order before the learned Tribunal which resulted in the impugned judgment.
7. The Tribunal held that the earlier decision of the appellate Tribunal was conclusive, binding and decisive of the matter. As the formula adopted by the impugned order was one of those suggested by the Tribunal itself, it was not open to objection. Agreeing with the earlier decision of the appellate Tribunal it was held that the "lawyer Magistrates were appointed against permanent posts and were confirmed before their absorption in the P. C. S. Service". The appellants were held to be not aggrieved persons in the matter of relaxation of rules and assignment of seniority in exercise of the powers under rule 10. Moreover, the appeal of the appellants was found to be barred by time as it was filed on 9-6-1977 and challenged the order dated 24-12-1976.
8. Leave was granted to examine the question of limitation as there was a recital in para. 2 of the memo. Of appeal before the Tribunal that the 4 impugned notification was not till then published in the gazette and this was a was not noted by the Tribunal. Its effect on the question of limitation had to be considered in the light of decision of this Court in Muhammad Sideman etc. v. Abdul Ghani (1) and secondly; in view of rule 10(a) of the West Pakistan P. C. S. (Executive Branch) Rules, the induction of the lawyer Magistrates in the P. C. S. Was by way of absorption subject to their suitability and not by way of integration as envisaged by the integration circular, dated 25-11-1955 which had the statutory backing of section 8 of the Establishment of West Pakistan Act. The question arises whether the lawyer Magistrates on such absorption could be conferred seniority from a date earlier to the date of absorption without affecting adversely their terms and conditions of service, and lastly; whether in giving the lawyer Magistrates the {{FOOT NOTE}}
(1) PLD 1978 SC 210 {{FOOT NOTE}} ' benefit of their ad hoc, purely temporary service for matching seniority with the regularly appointed members of a formally constituted service a similar inequity and injustice has been committed as was noted by the Civil Services (Appellate) Tribunal in its judgment, dated 11-5-1971.
9. Learned counsel for the appellants raised the following contents:-
(I) that the West Pakistan Civil Service (Executive Branch) Rules, 1964 were notified on 10-12-1964. It was for the first time that rule 10 in the aforesaid Rules empowered the Governor of West Pakistan to absorb the lawyer Magistrates into West Pakistan Civil Service and to assign them suitable seniority in the service. According to the learned counsel. The rules being subordinate legislation could not be given retrospective effect muchless executive orders passed in pursuance to the aforesaid rules ;
(ii) that rule 10 referred to above itself was subject to rule 8 of the aforesaid rules which provided for one or two years period of probation, the passing of Departmental Examination and acquiring the necessary training. Since the respondents lawyer Magistrates had never been appointed on probation, nor they passed the Departmental Examination nor undergone any training, therefore, their appointments under rule 10 of the P. C. S. Service, were wholly without lawful authority ;
(iii) the appellants also attacked the order of the Chief Minister, Punjab, dated 6-5-1976 granting exemption to the lawyer Magistrates from the provisions of rule 8 in the purported exercise of rule 13 of the West Pakistan Civil Service (Executive Branch) Rules, 1964 which reads as under : "13. Relaxation.-Any of these rules may, for reasons to be recorded in writing, be relaxed in individual cases if the Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned."
10. According to the learned counsel Ch. Muhammad Farooq this was not a case of hardship and thus the case not being covered by rule 13, the Chief Minister, Punjab, had no power to grant the relaxation. The mode of granting the relaxation was also attacked by the learned counsel on the ground of mala fide. According to him the case of each and every individual was not considered separately and on merits which did not constitute adequate compliance of rule 13. He also attacked the vires of the rules on the ground that the rule as such was inconsistent with the provisions contained in section 5 which reads as under : "5. Probation-(1) An initial appointment to a service or post referred to in section 4 not being an ad hoc appointment shall be on such probation and for such period of probation as may be prescribed.
(2) Any appointment of a civil servant by promotion or transfer to a service or post may also be made on such probation as may be prescribed.
(3) ..........
(a) ........
(b) ...............
11. According to the learned counsel the provisions or rule 13 being inconsistent with section 5 of the Punjab Civil Servants Act, 1974, were not saved under section 23 of the Act and were liable to be struck off. Reliance was placed in this, behalf to subsection (2) to section 23 of the Punjab Civil Servants Act, 1974. Besides this the learned counsel referred to section 22 of the Punjab Civil Servants Act, 1974 and to the proviso to the said section arguing that the effect of limiting the powers of the Governor of Punjab to pass any order to the detriment of the appellants.
12. Learned counsel for the respondents met the above contentions and also raised the point of limitation to the effect that the appeal was filed before the Service Tribunal on 9-6-1977 against the order of the Government, dated 24th December, 1976 which was barred by time and there was no application for the condonation of delay, and, therefore, the appeal was liable to be rejected on that ground. Secondly ; he objected to the maintainability of the appeal on the ground that all the appellants had not filed any representation against the Order, dated 24-12-1976 and, therefore, the appeal was hit by proviso (a) to section 4 of the Punjab Service Tribunals Act, according to which, no appeal lies to the Tribunal unless the appellants have filed an appeal, review petition or representation to the next higher authority and after the same remained undecided the period of 90 days had lapsed thereafter. The appellants admittedly, according to the learned counsel for the respondents, did not comply with the requirements of the above proviso and, therefore, the appeal was also liable to be rejected on that ground. On merits too he contested the points raised by the learned counsel for the appellants.
13. The impugned notification having been issued on 24-12-1976 no representation was contemplated under section 21 of the Punjab Civil Servants Act as there was no authority higher than the Provincial Governor in the Province. There was no right of appeal or review created by any rule. The representation filed on 3-2-1977 thus could not be availed for extending the period of limitation which was one month from the date of the order absorbing the respondents as lawyer Magistrates. The learned Service Tribunal held that the seniority list published in October, 1977 did not extend the period of limitation and there is a great deal of merit in the contention of the learned counsel for the respondents that the limitation commenced from the date of knowledge of the order of absorption and it is not possible to assume that the appellants did not come to know about the order for such a long time and there being no application for the condonation of delay.
14. Learned counsel for the appellants, however, contended that the impugned notification, dated 24-12-1976 had not yet been published in the official Gazette nor any seniority list revised, in the light of the order contained in the said notification, and endorsed to the appellants or to any of other affected officers of the former P. C. S. (Executive Branch), therefore, the impugned order dated 24-12-1976 has not been communicated to any of the appellants in the prescribed manner in terms of section 4 of the Punjab Administrative Tribunal Act, 1974. Representations were made by some of the appellants/affected officers to the competent authority before filing the persent appeal but no decision has been taken on these representations, according to the information available to the appellants. In the circumstances, the appeal before the Tribunal was preferred within the permissible limit of time.
15. We find that the Tribunal has come to the conclusion that the appeal was time-barred and no application for condonation of delay was made and the petitioners had the knowledge of the date of absorption as some of them had tiled representations which fact had been admitted by the appellants themselves in their appeal. The learned counsel for the respondents relied on Sh. Masud Ahmad v. Pakistan (1) (at page 200) where the learned Judges have observed:- "Learned counsel, however, argued that since the proceedings in the suit continued notwithstanding the commencement of Ordinance XV of 1973, that per se was a substantial reason of condonation of delay in the peculiar circumstances of the case. The matter, however, lay entirely within the discretion of the Tribunal and the Tribunal having chosen not to condone the delay, would scarcely be a reason for the grant of leave under Article 212 (3) of the Constitution, which envisages grant of leave on a substantial question of law of public importance'."
' Thus, we hold that the appeal before the Tribunal was barred by time and was rightly held, so, and, therefore, without going into the other points raised, we dismiss this appeal without costs.
(1) PLD 1976 SC 195