' S.ABDUL JABBAR KHAN (CHAIRMAN).-- Rana Amanat Ali, Budget and Accounts Officer, office of Chief Engineer Highways, North Zone, Lahore, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against order dated 29-3-1984, whereby Mahmoodul Hassan Mirza, Administrative Officer, South Zone Highways Department, has been transferred to North Zone and order dated 1-4-1984 whereby the said Mahmoodul Hassan Mirza has been posted as Administrative Officer in North Zone resulting in reversion of the appellant as Assistant Accounts Officer. The appellant has impleaded Government of the Punjab through Secretary to Government of the Punjab, Communication and Works Department, Lahore, as respondent.
2. By virtue of this appeal, he has prayed that the impugned order which amounts to an appointment without authority, being illegal, void and inoperative, may be set aside and the appeal be accepted.
3. Brief facts of the case are that the Highways Department was bifurcated into two Zones i,e, North Zone and South Zone vide order dated 28-11-1982. In order to distribute the clerical staff of the former Highways Department Punjab into the newly created North and South Zones in such manner that both the Zones get equal share of senior and junior persons, the Secretary to Government of the Punjab, Communication and Works Department, issued order dated 2-12-1982, whereby he laid down "Rational basis" for the distribution of the staff on the basis of seniority.
However, Chief Engineer, North Zone issued controversial order dated 17-3-1983, in the name of the Chief Engineer Punjab, although there was no Chief Engineer, Punjab, on that date. According to this order the previous allocations of two senior most persons were arbitrarily changed as follows:-
(1) Muhammad Ira], who was then going to retire on 31-8-1983, was re-allocated from South to North Zone.
(2) Mahmudul Hassan Mirza was re-allocated from North to South Zone.
' It may be mentioned here that vide earlier orders, of Government dated 28-11-1982 and 2-12-1982, which were accepted and implemented, the Chief Engineer Highways Punjab however, issued order dated 16/18-12-1982 strictly according to Rational basis, laid down by Government wherein senior most six members of the Ministerial Staff who are parties to the dispute, were allocated as under: {{TABLE TEXT}} Name of the person Zone
(1) Muhammad Iraj
(2) Mahmudul Hasan Mirza
(3) Muhammad Nazir Ahmad
(4) Shujauddin Mufti
(5) Abdul Aziz Rana Amanat Ali (Appellant) South Zone North Zone South Zone North Zone South Zone North Zone {{TABLE TEXT}} ' Accordingly Muhammad Nazir Ahmad filed representations, dated 28-4-1983 and 15-10-1983, against the aforesaid order dated 17-3-1983. These representations were accepted and the Secretary, Communication and Works Department issued order dated 29-3-1984, which has been challenged by the appellant in his appeal, and it was found that the order dated 17-3-1983, was arbitrary, therefore, the Secretary set aside the aforesaid order dated 17-3-1983, and passed the order which has been now challenged. However, the Chief Engineer (South) issued further order dated 31-3-1984 and similarly Chief Engineer North, issued order dated 1-4-1984, respectively in order to implement the orders of the Secretary, Communication and Works Department dated 29- 3-1983, and to restore the original allocation. The appellant, aggrieved against this order made a representation to the Chief Engineer, North Zone but did not make any representation to the Secretary Communication and Works Department, which was the next higher authority of the Chief Engineer. However, the said Chief Engineer rejected the same by his order dated 17-6-1984. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. It may also be mentioned at this stage that Muhammad Nazir Ahmed also appeared before this Tribunal and requested that his written statement be placed on record as he was party affected, in case the appeal of the appellant was given in his favour. Similarly Niamat Ali Khan, Assistant, also made appearance and filed application representing his own point of view and prayed that he may be made a party to it. There is also an application of Abdul Aziz, who prayed that he may be made party because he was a person to be affected and expressed his point of view through his application so placed on the record.
6. The case of the appellant in nutshell is that once earlier allocation was disturbed by the Chief Engineer who according to him was the competent authority to pass such order on 17-3-1983 (F.N.) as he relinquished the charge same day in the afternoon , therefore, the Secretary, Communication and Works had no authority to entertain the representation of Nazir Ahmad and to resurrect the earlier order of allocation which was so rescinded by the Chief Engineer Punjab. He placed reliance on the notification dated 4-9-1982, issued by Mr. A. H. Aslam, Secretary to Government of the Punjab, Communication and Works Department, Lahore, in which it has been laid down that each Zone shall be headed by Chief Engineer and Zones shall start working independently from the date of appointment of Zonal Chief Engineers. According to him Mr. Muhammad Tajammal Hussain, was very much Chief Engineer at the relevant time, therefore, the re-allocation made by him was fully competent. It has been further submitted by the learned counsel for the appellant that the impugned order has adversely affected the appellant i,e, his case for regular promotion to the post of Budget and Accounts Officer, which is pending before the Departmental Promotion Committee, may in the circumstances of the case, face shelving. According to the learned counsel for the appellant, the fact of the matter is that the appellant was senior most Superintendent of North Zone cadre and as such was eligible to the exclusion of others, for this regular promotion, which may be unjustifiably denied to him on account of this improper and illegal impugned order. He has laid lot of stress on the point that the assignment of ministerial staff on the eve of bifurcation of North Zone and South Zone cadres, had already, acquired finality as it was amply borne out by the correspondence between the Chief Engineer Highways North Zone and the Secretary, Communication and Works Department, who took decision in this respect. A grievance has been made that once the Secretary, Communication and Works Department resisted the allocation of Mirza Mahmoodul Hasan to North Zone earlier he had no locus standi and justification to take a somersault and accept the representation of Muhammad Nazir Ahmad and to change the earlier allocation of Mr. Tajammal Hussain, vide his order dated 17-3-1983.
7. On the other hand learned District Attorney has taken a number of preliminary objections before adverting to the merits of the case which are enumerated below:-
(i) That the appeal was hoplessly time-barred and was liable to be dismissed on this ground alone;
(ii) That the appeal did not disclose any cause of action and hence not maintainable. The appellant has made two vague type of grievances in the appeal;
(iii) viz.--
(a) His seniority has been affected.
(b) His right of being considered for promotion has been affected.
' According to the learned District Attorney both of these grievances are imaginary, as the appellant's seniority as Superintendent would remain intact. He has failed to disclose how he had become junior and the names of the persons to whom he had become junior as a result of the impugned order. It has been disclosed that Abdul Aziz, Superintendent (at present acting as Assistant Accounts Officer in his own pay and scale) was senior to the appellant and as such appellant had no chance of being considered for promotion. It has been submitted that the appeal suffers from a very serious defect, that as required under rule 7 of the Punjab Service Tribunal Procedure Rules 1975 a person whose seniority as affected is required to plead all those persons as party in the case against whom he is aggrieved. According to the learned District Attorney in this case Mirza Mahmudul Hassan, Muhammad Nazir Ahmad, Abdul Aziz and Salamat All Khan were necessary parties whose rights were liable to be affected in case the appeal of the appellant is announced in his favour.
8. With regard to the merits of the case it has been submitted that the Secretary, Communication and Works Department was fully competent to set aside the order of the Chief Engineer, when it was found by him that the earlier order so made by the said Chief Engineer was arbitrarily passed and was going to affect the rights of Muhammad Nazir Ahmad and others. It has been further argued that the said order of the Chief Engineer has been now fully implemented by the two Chief Engineers and in this manner the same cannot be set aside. Lastly it was argued that matters relating to the transfer of civil servants are beyond the jurisdiction of this Tribunal.
9. We have given our anxious thought to the arguments advanced by the parties and would first of all advert to the most crucial issues in this case which are as under:-
(1) Whether the order of the Chief Engineer, dated 17-3-1983, was against the basic ,formula as envisaged by the Secretary, Communication and Works, jn his notification, at the eve of bifurcation of the Communication and Works Department?
(2) Whether the Secretary, Communication and Works could take a decision on the representation of civil servants working under him by setting aside the earlier order of his Chief Engineer?
' What we find is that order dated 16/18-12-1982, the Chief Engineer, Highways Punjab, strictly according to the "rational basis" laid down by the Government the senior most six members of the ministerial staff, who were parties to the dispute, were allocated as follows:- {{TABLE TEXT}}
(1) Muhammad Iraj
(2) Mahmudul Hassan Mirza
(3) Muhammad Nazir Ahmad
(4) Shujauddin Mufti
(5) Abdul Aziz Rana Amanat Ali South Zone North Zone South Zone North Zone South Zone North Zone {{TABLE TEXT}} ' We also further find from the noting of this case, it was Mr. Muhammad Iraj, who himself prepared and put up a note before the Chief Engineer on the eve of his relinquishing the charge of the post of Chief Engineer, Punjab, which culminated in. To this re-allocation on 17-3-1983. We also find certain over writing on the file while dealing with this case with the date 16-3-1983. The result was that Muhammad Iraj who was going to retire on 31-8-1983, was re-allocated from South Zone to North Zone while Mahmudul Hassan Mirza from North to South Zone. This re-allocation seems to be illegal due to the following reasons:-
(i) Firstly, it was in violation of the "rational basis" laid down by the Secretary Communication and Works in his above cited letter dated 2-12-1982, which was fully accepted by both the Chief Engineers. According to this formula, two consecutively senior persons in the list could not be allocated to one and the same Zone. But as a result of order dated 17-3-1983, two consecutively senior persons, namely, Mahmudul Hassan Mirza and Muhammad Nazir Ahmad at serial Nos, 2 and 3, were stood allocated to South Zone. According to re-allocation the balance of seniority. {{TABLE TEXT}}
(1) of the two zones Name stood disturbed as SOUTH ZONE Mirza follows:- Serial No, in the Mahmudul Hasan integrated seniority list.
2
(2) Muhammad Nazir Ahmad 3
(3) Abdul Aziz 5 NORTH ZONE
(1) Muhammad Iraj 1
(2) Shujauddin Mufti 4
(3) Rana Amanat Ali 6
(ii) The above table {{TABLE TEXT}} was issued with will make it clear an object to give that order dated 17-3-1983, an undue advantage to the Ministerial Staff allocate to North Zone. Muhammad Iraj was to retire from service on 31-8-1983 thus causing a vacancy in BS 16. According to original allocation based on the agreed principle of "rational basis" the vacancy was to fall in South Zone. But in order to deprive South Zone of natural benefits of retirement of Mr. Iraj, he was purposely re-allocated to North Zone. Therefore, by his re-allocation to North Zone, this vacancy went to North Zone and it gave undue advantage to Rana Amanat All the appellant, who being at serial No, 6 stood a chance of promotion at the cost of his above named two senior officers. Consequently Messrs Muhammad Nazir Ahmad at serial No, 3 of the list and Abdul Aziz at serial No, 5 of South Zone who were deprived of their legitimate rights of special pay and promotions.
' In view of the circumstances so narrated above the representation of Muhammad Nazir Ahmad came to the notice of the Secretary, Communication and Works Department who realised the situation and then was pleased to set aside the earlier order of Mr. Tajamul Hussain, Chief Engineer date 17-3-1983 the argument of the learned counsel for the appellant that this very Secretary, Communication and Works, had resisted this change, pales into insignificance when we find that the facts of this case were not properly placed before the Secretary earlier and the Secretary being not fully conversant with this aspect of the case, was of the opinion at the relevant time, that Mahmudul Hassan Mirza should not be allocated to North Zone when all the facts became crystal clear as tabulated above, the Secretary's decision was strictly in accordance with the rational basis formula and he gave a verdict in favour of Muhammad Nazir Ahmad. With regard to the second point whether the Secretary was competent to change the order of the Chief Engineer dated 17-3- 1983, there can be no two opinions about the established principle that Head of the Department in the province cannot be stopped from interfering with the orders of subordinates when he found that such order were arbitrary and had resulted in affecting certain vested rights of persons who were entitled to the same. Moreover, it cannot be denied that factually all powers vested in the Secretary and it was he who delegated the powers to the Chief Engineer for the purpose of allocation of members. It is also on the record that the impugned order of the Secretary has neither been implemented by both the Chief Engineers and nor they have resisted the same or brought to his notice that this order was not justified. In fact this order was passed with the concurrence of these two Chief Engineers who fully realised that the earlier order of Mr. Tajammal Hussain, the then Chief Engineer, Punjab, dated 17-3-1983, was not fair.
10. We also cannot minimise the legal objection taken on legal plane by the learned District Attorney while pointing out that the representation made by the appellant was incompetent representation made to a lower authority and not to the Secretary himself. Secondly, that under rule 7 of the Punjab Service Tribunal Procedure Rules, 1975, it is imperative on the part of the appellant to implead those persons who are likely to be affected in case his appeal is given in his favour. Thridly, the appeal was in fact against the order of Secretary dated 29-3-1984, has been appealed against on 4-7-1984, which is late by more than two months.
11. In view of the above we are of the considered opinion that the order of the Chief Engineer dated 17-3-1983, was positively against the 'rational basis' formula and resulted in affecting the interest of seniors to Amanat Ali appellant. We are of the confirmed view that the Secretary, Communication and Works Department, who was the source of authority to the said Chief Engineer was competent to take a different decision when the factual position of the case was brought to his notice through the representation of Muhammad Nazir Ahmad.
12. With regard to the legal objection raised by learned District Attorney we have no hesitation to hold that the appeal is not maintainable in the present form as the appellant has failed to implead M/s. Mahmudul Hassan Mirza, Muhammad Nazir Ahmad, Abdul Aziz and Salamat Ali who were directly affected by his appeal and this was complete violation of mandatory provisions of rule 7 of the Punjab Service Tribunal Procedure Rules, 1975. Reliance is placed on the case of Dr. Muhammad lqbal Chaudhry v. Government of the Punjab (Appeal No, 246/1050/81) which was dismissed mainly on this score and their Lordships of the Supreme Court of Pakistan were pleased to uphold the decision of the Tribunal.
13. The result is that we proceed to dismiss the appeal as being without any merit, as well as not maintainable. There will be no order as to costs. The stay in the field stands vacated with the announcement of this judgment.