1. SHAFIUR RAHMAN, J.--Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the Service Tribunal by its order dated 9th of September, 1980 in determining and declaring respondent No.1 to be senior to the to appellant (In Civil Appeal No.20 of 1981) did not exceed the jurisdiction possessed by it in view of the restrictions contained in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act (LXX of 1973).
2. Muhammad Sadiq respondent No.1 joined the Military Lands & Cantonments Department as a Lower Division Clerk on 24th of March, 1956. He was promoted as an Upper Division Clerk on 7th of September, 1960. On 8th of March, 1969 he was promoted as Sub-Divisional Officer ad hoc. On the 21st of September, 1966 nine posts of S.D.O. Which were in NPS-11 were upgraded and brought in NPS-16 and re-designated as Deputy Assistant Military Estates Officer (hereinafter referred to as D.A.M.E.O.). On 5th of April, 1967 six other posts of S.D.Os. Were similarly upgraded. It was expressly mentioned while upgrading these posts that-- "Promotion to the above posts will be made by selection from amongst the existing S.D.Os. On the basis of merit. The selection will be made by a Departmental Promotion Committee to be convened by D.M.L. & C."
3. It was also indicated that-- "Rules regarding future recruitment /appointment to the Class II cadre in the M.L.&C. Service will be framed and issued in due course in consultation with Central Public Service Commission."
4. The Director, Military Lands and Cantonments, it is said, in consultation with the Ministry of Defence resorted to a method of recruitment to these posts of the D.A.M.E.O. Where by he considered the Stenographers and Assistants who were also in NPS-11 grade eligible for such promotion. On 7th of July, 1973, the Departmental Promotion Committee approved of the appointments of the to appellants Fazal Ahmad and Mushtaq Hussain who were at that the Stenographer and Assistant, respectively. In course of the, on 30th of January, 1976 they came to be confirmed---Fazal Ahmad from 7-7-1973 and Mushtaq Hussain from 11-7-1973.
5. It appears that soon after these to appellants were recommended by the D. P. C. , Muhammad Sadiq respondent No.1 represented against their ineligibility as they did not hold the post of S.D.O.
6. To be eligible for promotion to the post of D.A.M.E.O. And within twenty days another meeting of the Departmental Promotion Committee was convened on 25-7-1973 and it recommended among other five S.D.Os., the appellant and four other S.D.Os., for promotion.
7. The Director, Military Lands and Cantonment, the competent authority issued the following order on 25-7-1973:-- "After scrutinizing the Annual Confidential Reports/Service records of Stenographers, S.D.Os., and Assistants working in various Offices of the Pakistan Mily. Lands and Cants. Department, and after careful consideration of the recommendations of the Departmental Promotion Committee, it has been decided to select/promote the following officials as D.A.Ds./D.A.M.E.Os. In order of seniority:- S.No. Name Designation Office Date of selection as S.D.O.
1. Mr. Sabir Din S.D.0.D.D.M.L. & C.12-2-1968 Peshawar 2.Mr. Ata-ur-Rehman S.D.O.D.M.L. & C's.-do; Office 3.Mr. Muhammad Sadiq S.D.O. ,D.M.L. & C's.-do-- Office
4. Mr. M. A. Zafar S. D.0,C.E.0 (M.E. SEC), -do- Sialokot
5. Mr.S.M. Ansari S.D.O.D.M.L. & C's. -do- Office
(2) The seniority inter se has been fixed from the date of selection/ promotion as S.D.Os. In each case earlier fixed by the Departmental Promotion Committee convened from the to the and approved by the D.M.L. & C.
(3) Posting/ transfers orders of the aforementioned officials will be issued on occurrence of vacancies.
(4) The individuals may be informed accordingly."
8. It was followed on 8-8-1973 by a letter from Assistant Director, Military Lands and Cantonments addressed to the respondent No.1 stating as follows:-- "I express good wishes on behalf of Directorate on your selection/ promotion. "
9. After the promulgation of Civil Servants Act and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 on 22-3-1974 appeared the following notification:-- "No. 641/74.--In pursuance of sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the following method, qualifications and other conditions are laid down for appointment to the posts of Deputy Assistant Director Military Lands and Cantts./Deputy Assistant Military Estates Officer in Grade 16, under the Ministry of Defence, Military Lands & Cantonments Department.
METHOD OF APPOINTMENT
2. The post of D. A. D. M. L.& C./D.A.M.E.0. Will be filled by promo--tion CONDITIONS FOR PROMOTION
3. Promotions to posts in column 1 below shall be made by selection from amongst the persons who hold the posts specified in column 2 and possess the qualifications and experience prescribed in column 3.
10. Name of the posts Persons eligible Condition of eligibility.
11. Dy. Assistant Director S.D.Os./Assistants/5 years, service as Mily. Lands &Stenographers/S.D.0./Assistant; Cantts/Dy Assistant Superintendent Stenographer in Mily Estates in D.M.L.&C's the Department.
12. Office.
PROBATION
4. Persons appointed by promotion shall be on probation for a period of one year. This period may be curtailed for good and sufficient reasons to be recorded, or if considered necessary, it may be extended for a period not exceeding one year as may be prescribed at the the of appointment.
13. Appointment on probation shall be subject to the provi--sions of Article 6 of Civil Servants Act, 1973.
5. This notification issues with the concurrence of the Establishment Division.
14. It was as from 22-3-1974 and under this notification, Steno--graphers, Assistants and Superintendents also became eligible for promotion to the post of D . A . M. E.O.
15. In May, 1975, another vacancy of D.A.M.E.O. Occurred. Instead of promotion respondent No.1 in terms of order of the competent authority dated 25-7-1973, another meeting of the Departmental Promotion Committee was convened. The respondent No.1 immediately made representation to the department against the earlier promotion of the to appellants who were ineligible being not S.D.Os. And against the convening of meeting of Departmental Promotion Committee without giving effect to its earlier recommendation and without exhausting the panel cleared for promotion. He then filed a service appeal (235/11 of 1975) before the Tribunal. In that appeal, the to appellants before us were not impleaded and the only relief sought was as reproduced hereunder:- "In the circumstances, therefore, it is prayed that the respon--dents be directed to post the appellant against a vacancy of Deputy Assistant Director/Deputy Assistant Military Estate Officer which occurred on the 20th May, 1973. It is also prayed that the respondent be restrained from convening any meeting of the Departmental Promotion Committee for the purpose of promoting any other person to fill the vacancies that occurred on the 20th May, 1975."
16. In the service appeal the competent authority conceded the claim of the respondent and its order dated 29th October, 1975 as amended on 25th of November, 1975 reads as hereunder:- "Mr. Muhammad Sadiq S.D.O., D.M.L.&C. Office, Ministry of Defence, Rawalpindi, is appointed /posted as D.A.M.E.O. (Grade 16) in the Office of M.E.O. Rawalpindi Circle, Rawalpindi against the existing vacancy. The promotion will take effect from 20-5-1975 with all benefits admissible under the rules."
17. The Assistant Registrar, Service Tribunal was informed by the Competent Authority on 29th of October, 1975 as hereunder:- "I am directed to refer to your letter No.D-3187/1975, dated the 22nd September, 1975, on the above subject and to say that the above case has been carefully considered in detail in consultation with Law Division/ Ministry of Defence and it has been decided to implement in whole the orders as contained in this Department letter No.102/6/G/AD(B)/ML&C/72, dated the 25th July, 1973, with immediate effect."
18. The Tribunal disposed of that Service appeal by following order passed on 11-5-1976:- "Appellant present.
19. He has been given the sought for relief departmentally, so he does not want to pursue the matter.
20. The petition having fructified out of Court, is rejected.
21. Parties to be informed."
22. By an application for review dated 29-1-1974 the respondent No. l moved the competent authority to rescind the order dated 7-7-1973 promoting as D.A.M.E.O. The Stenographer and Assistant as according to him only S.D.Os. And none else was eligible to be promoted to that post in July, 1973.
23. On 8-2-1974 the respondent was informed that his appeal against the promotion of Stenographers/ Assistants had been entertained. By letter, dated 19-1-1977 the respondent No. l was informed as follows:- "The case been considered at Ministry's level. It has not been found possible to accede to your request for grant of seniority over the individuals appealed against and as such your petition dated 29-1-1974 stands rejected."
24. In the meantime, a notification was gazetted on 30-1-1976 confirm--ing among others, Fazal Ahmad appellant from 7-7-1973 and Mushtaq Hussain from 11-7-1973.
25. On 7-2-1977 the respondent filed an appeal before Service Tribunal against the order dated 19-1- 1977. In that appeal respondent No.3 was Fazal Ahmad and respondent No.4 was Mushtaq Hussain.
26. The respondent No.1 set out his case against them in the following words:- "That the promotions of respondents Nos.3 and 4 holding the ex-cadre post of Stenographer and Assistants were illegal and violative of the then existing orders/rules and not regular even within the meaning of sections 2(2) and 8 of the Civil Servants Act, 1973. As such, the appellant shall rank senior to them. Respondents Nos.3 and 4 shall not be deemed to be holding regular appointment of D.A.M.E.O. Before the issuance of Notification No.641/74, dated 22-3-1974."
27. During the pendency of appeal in the Tribunal, the Competent Authority on 4-8-1977 informed the respondent No.1 in following words:- "The case has been re-examined in detail in consultation with the Establishment Division/ Ministry of Law and it has been observed that the S.D.Os. Were eligible for appointment on regular basis from the date the posts were upgraded in 1966-67 whereas the other categories i.e. Stenographers/ Assistants were made eligible when the rules were issued in 1974. It has therefore been decided to examine the whole question de novo.
28. In the result, therefore, the M.L.&C. Department letter, dated 19-1-1977 cited above is hereby cancelled. The final decision as and when arrived it will be communicated to you."
29. After examining the merits of the contention of the parties, the Service Tribunal came to the conclusion that the to appellants were ineligible to be promoted in July, 1973 and their promotion was in violation of the law. There was, therefore, only the valid recommendation of the Departmental Promotion Committee in favour of respondent No.1 made in July, 1973. As that recommendation was not rejected or found defective in any manner but was approved by the competent authority, the department was bound to honor it and in terms thereof the vacancies would be deemed to be existing because these to appellants were not then at all eligible to fill the posts of D.A.M.E.O. On this finding, the date of promotion of respondent No.1 was not ante-dated but he was declared senior to the to appellants. The withdrawal of letter was held to be of no consequence in view of the subsequent conduct of the department. The relief granted to the appellant was in following terms:- "In view of the above discussion it is held that appellant whose promotion was approved on 25-7- 1973 shall be deemed to be senior to respondents Nos.3 and 4 who could only be promoted after issuance of letter, dated 14-5-1974. Their promotion earlier to 14-5-1974 is irregular and so is their confirmation it will not affect seniority of the appellant nor will it confer any right on respondents Nos.3 and 4. No order as to costs."
30. The to contestants, namely, Fazal Ahmad and Mushtaq Hussain have filed a separate appeal challenging the decision of the Service Tribunal and the Government of Pakistan has filed a separate appeal challenging the same decision of the Tribunal. It was contended by the appellants that the Service Tribunal has exceeded its jurisdiction as it has determined the suitability and fitness of a Civil servants for promotion to a higher post. The recommendation made by the Departmental Promotion Committee on 7-7-1973 with regard to the suitability and fitness of the to appellants have been interfered with and substituted. It was not within the competence of the Service Tribunal in view of proviso (b) to subsection (1) of section 4 of the Tribunals Act to give such a decision. Another ground taken up by the learned Deputy Attorney --General and the learned counsel representing the other Civil servants is that in his earlier service appeal, the respondent had raised the question of the eligibility of the to appellants to be promoted but had not pressed it and felt satisfied when his promotion was ordered from 20-5-1975. In view of such a conduct on his part, he should be deemed to have abandoned that relief and should be held estopped from taking up the same matter again. Finally, the learned counsel for these appel--lants and the learned Deputy Attorney-General urged that as the rejection of the representation by the letter dated 19-1-1977 was revoked and that order was withdrawn, there was no grievance left against which the respondent No.1 could maintain his service appeal and it should have been straightaway dismissed as infructuous.
31. The learned counsel for the respondent No.1 has drawn our attention to the substance of the controversy viz. The basic ineligibility of the to appellants to be even considered for promotion to the posts of D.A.M.E.O. In July, 1973 and if they were and they continued to be ineligible for the post they could not be given seniority for the period they remained ineligible. The rules framed on 14-6- 1974 which made them eligible for these posts had no retrospective operation and no order passed under it could be made to have effect from a date earlier than 14-5-1974. What was against law in 1973 could not be made in accord with law framed in May, 1974 unless the procedure prescribed in the new rules making them eligible for such promotion /appointment had been observed. In other words, the contention is that Departmental Promotion Committee should have considered them after 14-5-1974 as eligible persons fit to be promoted and then alone these appellants could match their seniority and their promotion could be said to be in accord with law. The appointing authority nor the Departmental Promotion Committee could take back their eligibility and promotion to a date earlier to 14-5-1974, as no defect was found in the recommendation of the Departmental Promotion Committee dated 25-7-1973 he on the basis of an earlier valid selection became senior to those who were or could be selected only subsequently and not either with him or earlier to him.
32. Section 5 of the Civil Servants Act provides that:- "5._ Appointments.--Appointments to an All-Pakistan Service or to a Civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf."
33. It is clear that all appointments have to be made in accordance with the rules, whether they are made by the President or by a person authorised by the President in that behalf. When the specified number of posts of S.D.Os. Were upgraded the manner of appointment thereto was prescribed in the following words:- "Promotion to the above posts will be made by selection from amongst the existing S.D.Os. On the basis of merit. The selection will be made by a Departmental Promotion Committee to be convened by D.M.L. & C."
34. The Service Tribunal has held that only S.D.Os. Were eligible for promotion. Even the department after examining the case in consulta--tion with the Law Division came to the same conclusion. We do not find anything to hold to the contrary. The delegate had no authority to alter a superior dispensation controlling the delegated power enjoyed by him. It became a term and condition of service of the S.D.Os.
35. It is a fact that at no stage disputed that the to appellants when considered and approved for promotion or even when appointed to the upgraded posts were not eligible to be promoted. Hence their consideration, recommendation and appointment was all against the law. In excess of the powers conferred on the Departmental Promotion Committee and the Competent Authority. It had nothing to do with their fitness or suitability. The question of fitness and suitability arises amongst eligibles and not amongst eligibles and ineligibles. The bar contained in proviso (b) to subsection
(1) of section 4 of the Tribunals Act is inapplicable.
36. There is nothing on the record to suggest, nor has it been contended before us that after the enforcement of the rules on 14-5-1974 making the category of Stenographers, Assistants and Superintendents any Departmental Promotion Committee constituted or continued under these rules reconsidered the case of the to appellants and approved of their promotion from a date after 14-5,1974 so as to take back their appointment to a date earlier to 20-5-1975 which is the date of the actual promotion of respondent No.1. What we find on record is the notification dated 30-1-1976 confirming them from 7-7-1973 and 11-7-1973. This would amount to passing a retrospective order, without complying with the requirements of the rule which itself is not retrospective ands gives no such power.
37. There is no question of estoppel or constructive res judicata. The representation of the respondent No.1 against the ineligibilty of the appellants to be promoted had been entertained and was already pending in the department. In the meantime, a meeting of the Department Promotion Committee had been convened. The respondent No.1 felt aggrieved over it. He impleaded only the Department, sought relief against the convening of D.P.C. Meeting and obtained relief. He did not seek then or even afterwards, the ante-dating of his promotion. There is, therefore, no case of bar of estoppel or of constructive res judicata being attracted.
38. The withdrawal or revocation of the final departmental order dated 19-1-1977 did not affect the adjudication on service appeal because the Department had affirmed what it revoked by another order, a formal notification dated 30-1-1976 confirming the appellants from an earlier date, a date when they were ineligible. That order held the field.
39. We find no merit in either of the appeals and both are dismissed with costs.