1. ' MUSHTAK ALI KAZI (CHAIRMAN).-- The appellants who were directly recruited as Mukhtiarkars have preferred the services appeals in respect of their seniority vis-a-vis the position allowed to promotee Mukhtiarkars according to the seniority list of 1975. Since these appeals involved common questions of law and fact they will be disposed of by this judgment.
2. ' Appellant Ikramuddin Syed was selected by the Sind Public Service Commission as probationary Mukhtiarkar in March, 1951, and he was posted against a permanent vacancy with effect from 18-8- 1953.
3. ' Appellant Taj Muhammad Qureshi was selected by the Sind Public Service Commission as probationary Mukhtiarkar on 3-9-1953 and he .Was posted on 17-3-1954.
4. ' Appellant Muhammad Hashim Memon was selected by the Sind Public Service Commission in September, 1953 as directly recruited Mukhtiarkar and he was posted against a permanent vacancy with effect from 14-6-1954.
5. ' Lastly appellant Altaf Hussain Qadri was selected by the Sind Public Service Commission as Probationary Mukhtiarkar on 1st September, 1953 and he was posted as such with effect from 9-6- 1954.
6. ' Respondents 3 to 26 were appointed to officiate as Mukhtiarkars by Government of Sind against temporary vacancies and in the integrated seniority list of February, 1970 they ranked junior to the appellants. The appellants had been confirmed on completion of their probation with effect from the dates of their initial appointment. Whereas the respondents were confirmed from the dates of their appointment against substantive vacancies. The integrated seniority of direct recruits and the officiating Mukhtiarkars was fixed on the principles laid down in former Sind Government Resolution No,4277-PS, dated 11th October, 1947.
7. ' Mr. Ikramuddin Syed was shown in the integrated seniority list for West Pakistan at serial No, 41, Mr. 'Taj Muhammad Qureshi at serial No,42, Mr. Muhammad Hashim Memon at serial No, 47 and Mr. Altaf Hussain Qadri at serial No,
49. In the former Province of Sind they ranked as No, 1, No, 2, No, 7 and No, 9, respectively.
8. ' The original Resolution regarding fixation of seniority in cadres to which appointments were made both by direct recruitment and by promotion referred to above reads as under:- "Resolution.
9. ' Government has had under consideration the question how seniority between promotee officers and direct recruits should be regulated. It has been found that the practice followed in the various departments differs. As it is necessary that there should be uniformity in all departments in a matter like this, Government is pleaded to lay down the following principles which should be followed in future in determining seniority between promotee officers and direct recruits in a cadre or service:-
(1) In a case of direct recruits seniority should be determined with reference to the date of their first appointment either substantively or on probation.
(2) In the case of officers promoted, seniority should be determined with reference to the date of their confirmation as Mukhtiarkars."
10. ' The position was altered by Government of Sind by passing another resolution on the subject, dated 17th March, 1955 just before integration of the four provinces as One-Unit Province of West Pakistan. This resolution, dated 17th March, 1955 is as under:- "Resolution.
11. ' In partial modification of Government Resolution P.S. & G.A.D. No, 4277-P.S., dated 11th October, 1947, Government is pleased to direct that the following procedure should be followed in determining the seniority between direct recruits and promotee officers in Revenue Department in the cadres of Deputy Collectors and Mukhtiarkars:-
(1) The seniority inter se of directly recruited officers in Revenue Department should be determined by the date of their substantive appointment.
(2) A promotee officer in Revenue Department when substantively appointed shall take ran:: in the order of seniority on the select list of Revenue Department's Officers above a direct recruit who was substantively appointed on a date subsequent to the date on which the promotee officer (or any officer junior to him on the select list) began to serve continuously in an officiating capacity.
(3) For the purpose of these rules an officer shall be treated as having officiated in a post during any period in respect of which Revenue Commissioner certifies that he would have so officiated but for his absence on leave, his tenure of a special appointment or other exceptional circumstances."
12. ' Thus the position was altered in favour of the promotee officers and their seniority was to be counted Erom the date of their continuous officiating in a grade as against the former rule of their appointment against a substantive vacancy or confirmation.
13. ' This Resolution was, however, placed before the West Pakistan Government Cabinet on 9-b-1956.
14. In the Summary for the Cabinet it was mentioned that originally under 1947 Resolution the seniority of direct recruits vis-a-vis promotee officers was to be counted from the date of their first appointment while in case of promotee officers it was to be determined with reference to the date of their promotion against substantive vacancies. That by subsequent Resolution, dated 17th March, 1955 in respect of officers in the Revenue Department only, this was being altered and the promotee officer was to rank above direct recruit from the date of his continuous officiation even against a temporary post. It was pointed out in the summary that these orders were not given effect to by the Sind Government and the matter was left for consideration of the Government of West. Pakistan. In the summary it was recommended that the original orders of the Sind Government should stand. The decision taken by the Cabinet was as under:- "Decision The original orders of the Sind Government, which are in conformity with the orders issued by the Government of West Pakistan, should be maintained and no exception should be made in the case of the Revenue Department of the former Sind area."
15. ' Thus the Resolution, dated 17th March, 1955 passed by the Government of Sind, which had not yet been acted upon was placed before the Government of West Pakistan Cabinet and it was in effect cancelled, while preference was given to the original position as it existed from October, 1947.
16. ' In pursuance of the above decision the Board of Revenue West Pakistan prepared integrated seniority list of Mukhtiarkars, dated February 2, 1970, reference to which has already been made.
17. ' After the breaking of One-Unit the question was again revived and a fresh summary was prepared for the Chief Minister, Sind, by Secretary to the Government of Sind, Revenue Department, dated 9- 11-1974. It was mentioned in this summary that the G.R. Of 11th October, 1947 had been altered by the G.R. Of 17th March, 1955, giving seniority to the promotee officers from the date of their continuous officiation. It was erroneously mentioned, that the contention of the directly recruited Mukhtiarkars that the modified G.R. Of March, 1955 could not have retrospective effect, was not based on sound footing. The important fact that the G.R. Of 1955 had not been put into effect by the then Government of Sind but had been placed for consideration before the West Pakistan Government Cabinet and had been rejected, was conveniently omitted from the summary. The result was that this proposal was approved by the Chief Minister on 6-8-1975 and the seniority list of Revenue Officers, viz., Mukhtiarkars was again revised and promulgated as the final list on 4th August, 1975.
18. In this list the promotees who had been officiating before the appointment of direct recruits were placed above the direct recruits and the direct recruits were relegated to a position at the bottom of the list, far below their original rank determined under the G.R. Of 1947 as approved by Government of West Pakistan. For instances, in the impugned seniority list, Mr. Ikramuddin Syed was shown at serial No, 114, Mr. Taj Muhammad Qureshi at serial No, 115, Mr. Hashim at serial No, 128 and Mr. Altaf Hussain Qadri at the end of the list at serial No,130.
19. ' The appellants thereupon rushed to the Service Tribunal and filed appeals challenging the seniority list of Mukhtiarkars published by the Board of Revenue, Sind on 4-8-1975.
20. ' The appeals were dismissed in limine by the Sind Service Tribunal by order, dated 25th March, 1976 as the appellants had not availed of their remedy by first approaching Departmental Authority.
21. This objection was upheld by the Supreme Court by order, dated 13th June, 1979. The appellants then preferred appeal before the Governor/M.L.A., Zone 'C'. They were informed by the Deputy Secretary to M.L. A . By letter, dated 15th August, 1983 that the appeals filed by them had been carefully considered and rejected. The appellants then filed the above appeals before the Service Tribunal within 30 days of getting the intimation from the Deputy Secretary to M.L. A . In respect of the decision that had been taken.
22. Question arises whether the Government could at any time change the seniority rules and deprive the officers of their rank in the seniority list that they were holding on the basis of earlier rules. As held in A PLD 1960 SC 195, the rules regarding seniority are not of the same nature and quality as the great body of departmental rules applicable to the conduct of officers and other such matters relating to the service as a whole which are capable of being altered by Government at any time.
23. Rules regarding seniority are statutory rules of the highest validity. The position assigned to a Government servant under the earlier seniority rules cannot be changed to his disadvantage under the rules altered subsequently by the Government. The rules framed subsequently are deemed to be prospective and not retrospective in their effect. Omnis nova constitution futures formal imposer debit non preterits; prima facie a new law affects future transactions, not the past.
24. That the new law ought to be construed so as to interfere as little as possible with vested rights, is a maxim based on justice and expediency, on the ground that all deprivation of existing rights is prima facie wrong. Retrospective operation could not be given to a statute so as to impair existing rights or obligations, the only exception being in matters of procedure; an amendment effecting a change of statute ought not to be construed to have a retrospective effect. Under section 6 of the General Clauses Act, any repeal or re-enactment shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or, affecting any right, privilege, obligation or liability acquired, approved or incurred under any enactment so repealed.
25. Under section 21 of the General Clauses Act power to make orders includes power to amend, vary or rescind such orders, rules or bye-law. But the Government could not rescind such orders if the same had become effective and any locus penitential was clearly at an end. Locus penitential in law, refers to the power of receding till a decisive step is taken. If a decisive step is taken in pursuance of the earlier order which is sought to be recalled, i,e,, if the order has been implemented or carried into effect, then the power to modify or cancel such order comes to a stop.
26. Where rights have already accrued under an order, the Government cannot withdraw the order so as to give effect to a previous order with retrospective effect and thus deprive a person of the accrued rights. In any case an order of amendment under section 21 of the General Clauses Act cannot operate retrospectively, though, it may operate prospectively. This principle of animus reverend or loco penitential has been generally followed in a number of decisions of the Supreme Court including 1981 SC MR 523. An order of appointment cannot be recalled after it has been acted upon and rights get vested in the appointee, though, afterwards the order may be found to have been erroneous.
27. Every officer in a graded service has a vested right to a proper place in the seniority list. This is of the highest importance to him, as was held in the case of Bashir Ahmad Khan v. Mahmood Ali Khan PLD 1960 SC 195. The position in the list confers on the officer prospects for an early promotion to a higher grade. The seniority is, therefore, an important condition of service of which an officer cannot be deprived except in accordance with law. The rules cannot be subsequently altered to the disadvantage of the officer, though, such rules can operate only prospectively. Applying the above principles we find that under the rules as originally framed in 1947 and the rules adopted by the Government of West Pakistan in 1956 the appellants had certain rights vested in them concerning their seniority in the cadre vis-a-vis the promotee officers officiating in the cadre at the time of their appointment. Under these rights the officers had been placed at a very high position in the seniority list and their chances of promotion to Grade-17 and above were very bright as compared to the promoted officers. By alteration of the rules, they were reduced to a much lower rank in the seniority list. One of the appellants having been placed practically at the bottom of the list, and all this had been done in pursuance of the alternate rules adopted by the then Government, without considering the seniority right of the appellants which had already accrued to them under the existing rules.
28. ' Learned A.A.-G. Mr. Hassan Akbar has refrained from advancing any arguments on merits. He has, however, taken some technical or legal pleas regarding appeals not being maintainable. He has first argued that the appeals were dismissed by the Service Tribunal, since they had not filed the departmental appeals before the Chief Minister/M.L.A., Sind. The appellants then preferred appeals before the Chief Secretary and after waiting for 90 days they filed appeals before the Service Tribunal in accordance with proviso to section 4 of the Sind Service Tribunals Act, 1973. The appeals were again dismissed in limine because according to majority decision, the departmental appeal had not been filed within the prescribed period of 30 days. The Supreme Court held that the appeals had not been filed before the appropriate departmental authority which, in this case, would be the Chief Minister, i,e, the Governor. Appellants then filed appeals before Governor and they were informed by the Deputy Secretary to M.L.A. That their appeals had already been carefully considered and rejected as per letter from the S&GAD copy enclosed. Since the matter was closed, this was regarded as rejection of their appeal before the Chief Minister/Governor. They, therefore, filed the present appeals within 30 days of the communication.
29. Mr. Hassan Akbar has next argued that seniority, not being a vested right, is not included in the terms and conditions of service of a civil servant. This Tribunal has already disposed of a number of service appeals on the question of seniority which is an important right of a civil servant affecting his future promotion. Under the circumstances this objection of the learned A.A.-G is merely a formal objection which needs no further discussion, besides what has already been stated above.
30. As a result of the above discussion we are of opinion that the seniority list of Mukhtiarkars, Grade-16 prepared by the Board of Revenue, West Pakistan in 1970, could not be scraped off. That on the basis of the principles of interpretation, the new rules could not be applied retrospectively to the disadvantage of the officers concerned, nor could they be deprived of their ranks determined in accordance with the existing rules of seniority. The Government may, therefore direct preparation of a fresh seniority list of Mukhtiarkars keeping in view the rights of the appellants. It has been pointed out that preparation of fresh list may not actually benefit the appellants, because almost all the respondents have since retired or have died. The appellants are, however, content with this adjudication of their due rights of seniority in Grade-16.
31. ' But for this modification regarding preparation of fresh seniority list in Grade-16, the remaining prayers of the appellants regarding other relief cannot be acceded to as the consequential promotions or other back benefits which follow from such promotions would be outside the jurisdiction of this Tribunal at this stage. The appeals are disposed of accordingly with no order as to costs.