1. ' MUSHTAK ALI KAZI (CHAIRMAN).-- The appellants, Assistant Mukhtiarkars in Revenue Department, Government of Sind, being aggrieved and dissatisfied with the decision of the Government, Revenue Department to abandon the select list of Mukhtiarkars containing their names, have preferred these service appeals under section 4 of the Sind Service Tribunals Act, 1973. Since the appeals involve common questions of law and fact they will be disposed of by this judgment.
2. ' The facts in brief are that on 17-4-1959 appellant Allah Rakhio Soomro had joined the Revenue Department as a Junior Clerk. He then passed the Revenue qualifying Examination held by Sind Public Service Commission in April, 1970 and secured first position in Sind. He completed training as Taluka Head Munshi in July, 1973. He had already obtained M.A., LL.B. Degrees from University of Sind.
3. On 7-1-1982 he was promoted as Assistant Mukhtiarkar and continues to hold that post.
4. ' The Senior Member, Board of Revenue prepared and approved select list of Revenue Subordinates fit to act as Mukhtiarkars for the year 1975 in 1980 consisting of 36 officers including the appellant.
5. 23 persons from the list were posted as Mukhtiarkars. But before the list was exhausted it was abandoned and a fresh list of 15 persons was prepared for being promoted as Mukhtiarkars on ad hoc basis under notification dated 24th July, 1983 issued by Secretary to Government of Sind, Revenue Dapartment. Representation was made before the Senior Member, Board of Revenue, but it remained pending.
6. ' Likewise, appellant Achaldas was also included in the select list of Mukhtiarkars of 1975, merged into fresh select list of Mukhtiarkars of 1977 prepared in the years 1980 and 1983, respectively. The Select List of 1975/1977 was shelved and by notifications dated 10th April, 1983 and 24th July, 1983, fresh lists of 15 officers and then 14 officers were issued for promotion on ad hoc basis as Mukhtiarkars.
7. ' Government of Sind, Revenue Department has laid down sound principles for preparation and maintenance of select List of Revenue Subordinates considered for promotion as Mukhtiarkars. This was contained in Resolution No, 3-IX-II-C/41, dated 10-1-1945. Only the members of the Subordinate Revenue Service who had passed Revenue Qualifying Examination, unless exempted, could be included in the list. Their seniority was determined from the date of entry of their names in the select list. The inter se seniority was determined by assigning marks: One mark for each complete year of service. One mark for each complete year after the date of passing the Revenue Qualifying Examination. Five marks for University Degree other than the degree in law. Five marks for LL.B.
8. Degree. Three additional marks for M.A. Degree. If the aggregate of marks obtained was the same the candidate older in age was to be given preference. Whenever a vacancy of Mukhtiarkar was expected to last for more than six months it had to be filled by the most senior person on the Select List. The Select List was to be prepared in consultation with the Public Service Commission. The list could not be revised or changed except in consultation with the Commission.
9. ' It is the case of the appellants that after integration, West Pakistan Government did not change the above procedure prevailing in Sind. After dismemberment of One-Unit and passing of Sind Civil Servants Act, 1973 and Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 the position was slightly altered by giving 10% from the posts reserved for initial recruitment to members of the Ministerial Establishment of Board of Revenue and Divisional Commissioners, but otherwise the old practice for promotee Mukhtiarkars continued. Thus the Select Lists for the years 1975 and 1977/78 were prepared in 1980 and 1983, respectively, and about 23 persons were taken from the select list for appointment as Mukhtiarkars while the remaining persons were awaiting their turn. But this policy was suddenly changed and new lists for years 1975 and 1978 were prepared on the basis of notification of 1977.
10. ' The stand taken by the Secretary, Revenue Department in the written statement is as under:- "While the Select List of 1975 which was prepared in 1980 had been partly acted upon, it was considered that the procedure and policy regarding the appointment of Mukhtiarkars by promotion on the basis of Select List was not in conformity with the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Accordingly it was decided to hold further promotion on the basis of Select List in abeyance. In the meanwhile, in pursuance of the Provisions of Rule 3 (2) of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, fresh policy regulating procedure for promotion of Revenue Subordinates to the post of Mukhtiarkars has been drawn up and sent to the Services and General Administration Department for approval. Till such time as the revised policy is approved and enforced, as stated above, regular appointments to the posts of Mukhtiarkars have been withheld and instead some of the existing vacancies have been filled up by promotion on ad hoc basis."
11. ' Thus it has been admitted that the Select List of 1975 prepared in 1980 has been kept in abeyance.
12. It is also admitted that fresh policy regulating procedure has not so far been finalised. It has further been admitted that appointments of Mukhtiarkars are being made on ad hoc basis.
13. ' The legal position in this respect has been laid down by the Supreme Court. Under section 21 of the General Clauses Act the Authority which can pass an order is entitled to vary, amend, add to or rescind that order. But this power to recede can be exercised only till a decisive step is taken. If, however, the order has been given effect to, so that no locus poenitentiae is left, there will be no occasion for exercise of power mentioned in section 21 of the General Clauses Act Shahbaz v. The Crown PLD 1955 Lah.
65. Thus the power to amend an order or to cancel it cannot be carried into effect if the order has been acted upon, as the power does not include the authority to take away validly acquired rights.
14. In the present case the notification issuing the Select List has been acted upon and 26 persons have already been promoted as Mukhtiarkars out of that list. The remaining persons in the list are in expectation of getting their posting orders. Even the Seniority List cannot be altered, on the ground that the alteration affects the valuable rights of expectation for a promotion. The Select List is virtually a list of persons selected for promotion, to be posted as and when the vacancies occur.
15. Any fresh notification, therefore, cannot deprive a person of the accrued rights. PLD 1969 SC 407.
16. It may also be pointed out that it is a generally recognised principle that the rules, orders or Instructions under the old enactment continue to take effect until the rules under any new enactment are framed and promulgated. A notification issued before the amendment of an act remains valid in absence of a new notification. This has been clearly explained in section 24 of the General Clauses Act. For the purposes of the Civil Services this principle has been embodied in section 26(2) of the Sind Civil Servants Act, 1973. It reads as under:- "Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and enforce immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
17. The regulation regarding determination of inter se seniority governing the select list of Mukhtiarkars is not inconsistent with the Civil Servants Act nor with any other enactment. The Select List of Mukhtiarkars is not a list of promotions on the basis of seniority. It is a selection made on sound basis by assignment of marks on experience, examinations and academic qualifications. It is neither promotion simpliciter on the basis of seniority, nor selection by initial recruitment. It is a qualified selection from amongst the employees of the Revenue Department. It is, therefore, governed by peculiar rules as distinguished from general rules of promotion. The reason given for keeping the select list of Mukhtiarkars in abeyance is the inconsistency found between these rules and the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, rule 11 (b), that in the case of persons appointed by promotion, inter se seniority shall be determined on the basis of their inter se seniority in the lower grade. If this rule was to be applied to selection of Mukhtiarkars, it is bound to cause injustice as the selection does not depend on seniority alone, but on qualifications acquired like passing of the Revenue Qualifying Examination and acquiring academic degrees and having experience as Head Munshi. The general rule framed regarding inter se seniority on promotion was not meant to be applicable to the special case of selection of Mukhtiarkars. In such cases the special rule continues to be applicable in spite of general rule to the contrary, by application of the Maxim generalia specialibus non derogant. Special rule overrides the general rule. The general rule is not to be taken as meant to rip up what the special rule had before provided unless an intention to do so is specially declared in the general rule. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to". (Blackpool Corporation v. S.T.A.R.R. Estate Company Ltd., 1 Appeal Cases 27 at page 34 Maxwell on the interpretation of Statutes XII Edition, page 196.
18. ' In any case the inconsistency in the subsequent rule, is with regard to inter se seniority on promotion. Any doubt on the question of inter se seniority could have been resolved, subsequently, and there was nothing to prevent the appointment of Mukhtiarkars subject to the question of inter se seniority being determined later on. The Select List could not have been acted upon and appointments could be made from it. That would have been more convenient than keeping the list in abeyance and resorting to ad hoc appointments for which the persons in the list were not even considered. This procedure is neither just nor fair nor reasonable and is bound to cause unnecessary heart burnings and speculations.
19. ' Thus the appointments of Mukhtiarkars in contravention of the rules outside the select list on ad hoc basis for more than six months would appear to be against the law and practice.
20. Even if any new rules or regulations are made for preparation of select list of Mukhitarkars contrary to the general principles that have beem followed during the last century, the new rules or regulations will not have any retrospective application. They will not, therefore, affect the select list of Mukhtiarkars already prepared and not yet exhausted. Retrospective operation is not to be given to any rule or regulation so as to impair an existing right or obligation. If operated retrospectively, any such new rule would prejudicially affect vested rights or the legality of past transactions.
21. Therefore, in any case the present select list will continue unimpaired.
22. ' The learned Assistant Advocate-General has raised the point of jurisdiction in view of section 4(b) of the Sind Service Tribunals Act, 1973. The present appeal is, however, not against an order or a decision of the Revenue Department determining the fitness or otherwise of a person to be appointed to or hold a particular post, or to be promoted to a higher post or grade. Expectation of promotion or the implementation of the vested right of appointment from the Select List, are matters concerning the terms and conditions of service. The Tribunal is not determining the question of fitness of any particular officer for promotion. No further relief of this nature directing appointment and promotion of any of the appellants nor withholding the ad hoc promotion of any other officer, is being allowed. That is a matter left entirely to the department concerned.
23. ' In the result the appeal is disposed of in terms of the above order. The parties will bear their own costs.