1. ' NASIM HASAN SHAH, J.-This appeal, by leave of this Court, is directed against the judgment of the Punjab Service Tribunal, Lahore, dated 18-10-1981.
2. ' The relevant facts are that respondent Syed Muhammad Akram Shah joined the office of the Deputy Commissioner, Gujrat in the year 1946 as a Clerk. After holding various posts (including Assistant .Colony Clerk, Sadar Wasil Baqi Nawis and District Revenue Accountant) he was appointed as District Nazir. His record of service throughout was meritorious and he continued to earn commendatory remarks from his superiors. Consequently, he was recommended for appointment as a Naib-Tehsildar in 1972 and was also proposed for nomination to the former P. C.
3. S. In 1973 and 1974, he was recommended for appointment as Tehsildar by various Commissioners and Deputy Commissioners under who he had the opportunity to work. Ultimately, in Kay, 1975, he was selected by the Member, Board of Revenue vide his Order No, 3849-75/1825-E(F)- as a 'II' Class Tehsildar candidate in relaxation of rule 2(1 3(b). The text of the order of appointment is as follows :- "Order Lahore, dated the 26th May, 1975.
4. No, 3849-75/1825-E(F) I.-Under rule 5(I)(II) (b)(iii) of the West Pakistan Tehsildari and Naib- Tehsildari Service Rules, 1962, Sye Muhammad Akram Shah, Assistant, Deputy Commissioner's Office, Gujrat, is selected as a 'B' Class Tehsildar candidate, in relaxatio of rule 2(13)(b) as permissible under rule 13 of the Rules ibid. ' According to rule 8 of the said Rules, his appointment to the Tehsildar Service shall- be subject to successful completion of necessary training, passing of departmental examination of Tehsildars and production of requisite certificates within such period or in such number of attempts as prescribed in rules 4(2)(b), 53, 57 and 58 of West Pakistan Tehsildari and Naib-Tehsildari 'Department Examination and Training Rules, 1969."
5. ' The respondent, thereafter, took the necessary training and passed the requisite departmental examination and was declared to be qualified to hold the post of Tehsildar vide Memo. No, 6281- 76/57-2-E(F), dated 30-8-1976.
6. ' After the change-over on 5-7-1977, the Martial Law Administrator, Zone 'A', issued Martial Law Instruction No, 21 on the subject of "Regularization of ad hoc Appointment" on 8th August, 1977. The relevant extract from this Instruction is reproduced below :- "Martial Law Administrator, Punjab, Zone 'A' has decided that the following procedure will be adopted with immediate effect to regulate these- appointments :'-
(a) Persons selected by Public Service Commission against ad hoc vacancies will be given appointment letters and affected services of ad hoc appointees \terminated.
7. (b). Cases advertised by Public Service Commission and other formalitie also completed by them will be finalised by 3lst'August, 1977, and action taken as in (a) above.
(c) Cases of all other persons appointed directly or promoted on ad hoc basis at present in service will be reviewed immediately by the appropriate selection authority competent to make recommendations for regular appointment according to the rules. On such reviews - those who are found ineligible or 'unsuitable, their services will the terminated. Those found eligible and surrable will be converted to regular basis. This action shall be completed by 31st August, 1977, by all departments in the Province of Punjab.
(3) Martial Law Administrator, Punjab, Zone 'A' further directs that all appointments, whether by initial recruitment or by promotion, made otherwise, than in accordance with the prescribed method of recruitment/promotions, shall be deemed to have been made on ad hoc basis notwithstanding that they have been made in the purported exercise of power of relaxation of rules and their cases will also be regulated according to policy given in para. 2 above."
8. Para. 3 of Martial Law Instruction No, 21, reproduced above, 'shows that all appointments made otherwise than in accordance with the prescribed method of recruitment/promotion were to be deemed to have been made ad hoc basis notwithstanding that they were made in the purported exercise of powers of relaxation and were to be reviewed by the Selection uthority competent to make recommendations for regular appointment according to the rules.
9. ' The respondent's case was also reviewed under the said Instruction and considering it to be a case of ad hoc appointment, falling under para. 3 of the said Instruction, the respondent was removed from the post of Tehsildar, vide order dated 14-9.1977 passed by the Member, Board of Revenue. The text of this order is as under :- "Order "3974/3038-E (F)I, dated the 14th September 1977. As a result of scrutiny matter taken by the Review Board, in pursuance of the provisions contained in M. L. Instruction No, 21, the names of the following Tehsildars are removed from the list of candidates for the post of 'B' Class Tehsildars and they shall stand reverted to their original posts with effect from afternoon of 18th September, 1977 :
(1) Mr. Muhammad Sadiq Raza, Tehsildar, L. M. C., Lahore.
(2) Mr. S. Muhammad Akram Shah, Tehsildar, Jhelum.
10. By the order of Member Board of Revenue, Punjab, Lahore."
11. ' The name of the respondent, S. Muhammad Akram Shah, figures against Item No, 2, in the above order.
12. ' Feeling aggrieved by the above order, the respondent filed appeals and made representations to the Martial Law Administrator, Zone 'A' (Punjab), Lahore, Governor Punjab and to the Board of Revenue, Punjab, Lahore, but without any success and the last representation on the above Subject was rejected by the Government vide their order, dated 14-2-1981.
13. ' Failing to obtain redress from the Governtnent, the respondent filed ...I appeal before the Punjab Service Tribunal. Before the said Tribunal an objection was raised that the case of the respondent was hit by Article 15 of the Provisional Constitution Order, 1981 because any order passed 'under Martial Law Instruction No, 21 could not be called in question in any Court on any ground whatsoever. The learned Tribunal repelled this objection on the ground that the Board of Revenue had unnecessarily referred the case of the respondent for relaxation to the Chief Minister because no relaxation in the rules was required in the case of the respondent herein. Hence his case did not come within the purview of Martial Law Instruction No,
21. On merits, it was held that since the Review Board constituted under Martial Law Instruction No, 21 could not take up the case of the respondent, the order passed by it of removal/reversion of the respondent was void and of no 'legal effect. In the result, the appeal of the respondent was accepted and it was declared that he should be considered to be a Tehsildar with effect from the date of his removal from the post, as if he was never so removed. This order of the Tribunal was passed on 1840-1981.
14. The Province of the Punjab and the Member, Board of Revenue, feeling aggrieved by the above order of the Service Tribunal, filed a petition for leave to appeal against it before this Court and leave was granted to examine the question of law as to whether or not the case of the respondent is hit by Article 15(2) of the Provisional Constitution Order, 1981 ?
15. ' The conclusion of the Service 'Tribunal that Martial Law Instruction No, 21 was not attracted to the facts of the case of the respondent because, in fact, no relaxation of the rule was necessary, was grounded on the following reasoning:- Under the West Pakistan Tehsildari and Naib-Tehsildari Rules, 1962; the expression "subordinate service" defined in clause (13) of rule 2 thereof, is as follows :- "(13) Subordinate service' shall comprise :-
(a) for the purpose of appointments to the posts of Naib-Tehsildars.-,1 (i)
(b) for the purpose of appointments to the posts of Tehsildars.
16. (i)
(v) Ministerial employees of the Board of Revenue, who are graduates and have at least three years' service as Assistant."
17. Though the respondent (who despite being a Graduate) did not have three years' service as an Assistant in the Board of Revenue .He could be treated as qualified to be appointed as a Tehsildar, because under rule 7 of the Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974, the requirement of being an Assistant in the Board of Revenue stood abolished. Rule 7 thereof provides : "Notwithstanding anything contained in any rule, order, or instructions all reservation of posts for purposes of appointment, promotion or transfer in favour of persons belonging to a particular service or cadre or belonging to a particular post are abolished."
18. ' The Service Tribunal was of the opinion that the reservation of promotion to the post of Tehsildar to the Graduate Assistants of the Board of Revenue stood abolished for promotion to the post of 'B'
19. Class Tehsildars by virtue of the above-mentioned rule 7 of the Punjab Civil Servants (Change in Nomenclature and Abolition of Classes) Rules, 1974.
20. Mr. S. M. Zubair, learned Assistant Advocate-General (Punjab), in support of this appeal, however, submitted that the Tribunal's conclusion that rule 7 of the Punjab Civil Servants (Change in Nomenclature of Service and Abolition of Classes) Rules, 1974, abolished the requirement contained in rule 2(13)(b)(v) of the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 that a ministerial employee of the Board of Revenue, who was a graduate and had at least three years' service as Assistant were alone qualified, was erroneous, as this requirement had not been abolished by rule 7 of the 1974 Rules. Consequently, the respondent could only have been appointed if the requirement of rule 2(13)(b)(v) of the 1962 Rules was relaxed in the relevant regard.
21. Hence, the resort to the power of relaxation, as provided for in rule 13 of the said Rules was essential, before the respondent could be appointed to the post of the Tehsildar. Consequently, the case of the respondent did fall within the purview of Martial Law Instruction No, 21.
22. We are inclined to agree with the above submission and do not agree with the interpretation placed on the import of rule 7 of the Rules of 1974 by the Service Tribunal. Hence, we cannot agree with its conclusion that the terms of the said rule meant that the reservation of promotion to the post of Tehsildar to the graduate Assistants of the Board of Revenue stood abolished ; therefore, the respondent stood fully qualified for promotion to the post of 'B' Class Tehsildar by virtue of rule 7 aforesaid. In this view of the matter, the order of the Review Board constituted under Martial Law Instruction No, 21 became immune from question in any Court on account of the provisions of clause (2) of Article 15 of the Provisional Constitution Order, 1981.
23. We may, however, observe that the relaxation of the condition contained in rule 2(13)(b)(v), of the Rules 1962 to enable the respondent to be appointed as a' Tehsildar does not appear to have been made on political or any extraneous grounds, but was order& with a view to reward an efficient and competent official. This is evident from the remarks earned by the respondent from the various officers under whom he served. These remarks may usefully be reproduced hereunder :- "Mr. S. Muhammad Akram Shah has been spoken of very highly by several D. Cs. In succession. In 1966, Mr. C. A. Said, P. C. S. Then D. C., while recommending him for the post of Naib-Tehsildar termed him as an efficient, obedient, honest and an experienced official, quite suitable for executive appointment. According to Mr. Ahmad Sadiq, C. S. P. Who was D. C., Gujrat in 1967, Mr. S. Muhammad Akram Shah is very useful official with executive trend. In September, 1968, Mr. Manzur- ul-Hasan, C. S. P., the then D.
24. 0., gave Mr. Muhammad Akram Shah accelerated promotion due to his super performance and also recommended him for D. C.'s recommended S. Muhammad Akram Shah twice for the post of NaibTehsildar. The same D. C. Held a very high opinion of this official. He found him a capable.
25. Inaustrious and scrupulously honest official who is quite intelligent and smart with pleasing behaviour. He further described him .As conscientious worker who enjoyed good reputation among the officers as well as the public. I entirely agree with my predecessors. I found the official to be efficient, honest and possessing a' great deal of initiative. He is a graduate. His promotion would indeed be recognition of an outstanding service record and merit. I strongly recommend him for promotion to the cadre of P. C. S. (Sd.) Mahbub Ahmad, C.S. P. D. C., Gujrat 16-8-1972 ' A highly spoken of official. Although he is not eligible, he merits promotion to the P. C. S. In relaxation of rules in view of his excellent record and the strong recommendation by the D. C.
26. (Sd.) F. K. Bandial, Commissioner, Rawalpindi Division.
27. ' I entirely agree with my predecessors. I found the official to be efficient, honest and very noble. He enjoys an enviable reputation for his excelleut behaviour with his colleagues and the public. In view of his devotion to duty, he has been granted D. C.'s Sanad. He has a flair for execusive work and will prove to be a good revenue officer. I strongly recommend him for the post of Tehsildar.
28. (Sd.) Ijaz Hussain Malik, C. S. P. D. C., Gujrat 16-3-1973.
29. ' A highly spoken of official. Has an agricultural/rural bias, with his experience, background and qualifications, he should make a good Tehsildar.
30. (Sd.) F. K. Bandial, Commissioner, Rawalpindi Division.
31. 28-8-1973.
32. ' Repeated S. Muhammad Akram Shah B. A. District Revenue Accountant of my office, is very hardworking and honest official with initiative and drive. He is very useful official with executive trend and will prove a good Revenue Officer. I recommend him for the post of Tehsildar.
33. (Sd.) S. A. Zulqarnain, D. G., Gujrat 13-12-1974.
34. ' Has an excellent record of service and is highly spoken of by his superiors and colleagues. On earlier occasions too he had been recommended for higher positions and responsibilities that he highly deserved. With the experience 'and qualification and agricultural/rural background he should make a good Tehsildar.
35. (Sd.) F. K. Bandial, Commissioner, Rawalpindi Division 15-2-1974."
36. ' We, therefore, asked Mr. Zubair, the learned Assistant Advocate-General (Punjab), whether, in view of this situation, the Government may not like to examine the question of reconsidering the respondent for appointment as '13' Class Tehsildar in accordance with the rules. The . Learned Assistant Advocate-General, after seeking instruction from the Board of Revenue, made the following statement before us :- "The Board of. Revenue is prepared to consider Mr. Muhammad Akram Shah who is now a Superintendent for promotion as 'B' Class Tehsildar as and when the first next vacancy reserved for 'B' Class accrues ; subject to the Government agreeing to relaxation in his experience (that by 2 years on 23-11-1984) and age (overage by 5 years, over 50 years provided in the rule 13)."
37. In view of the above statement, we observe that the respondent be considered for selection for the post of a `' Class Tehsildar.
38. The overall conclusion is that the order of the Board of Revenue dated 14.9-1977, which was passed in pursuance of the recommendation of the Review Board, constituted under Martial Law Instruction No, 21, was immune from being called in question in any Court and, therefore, the impugned order of the Service Tribunal, dated 18-10-1981 setting aside the order cannot be sustained.
39. ' This appeal, which is directed against the said order of the Service Tribunal, dated 18-10-1981 must, therefore, succeed. It is, accordingly, allowed, subject to the observations made above.
40. ' The parties shall be left to bear their own costs.