S. ABDUL JABBAR KHAN (CHAIRMAN).--Messrs Ch. Muhammad Anwar and 20 others have filed this appeal under section 4 of Punjab Service Tribunals Act, 1974 in which they have impleaded Secretary to Government of the Punjab, Communication & Works Department, Asif Ali Khan, S.D.O., Abdul Waheed Qureshi, S.D.O., Raja Muhammad Aslam, S.D.O. And Bashir Ahmad, Assistant Director, as respondents. Appellants have prayed that the final Seniority List dated 1-4-1985 in so far as it relates to the parties be set aside and Contesting respondents Nos. 2 to 5 be declared junior to the appellants.
2. Brief facts of the case are that after passing their B.Sc. (Civil Engineering) Examination, appellants applied to the Public Service Commission for initial appointment against 80 posts of Assistant Engineers advertised by the Commission. Out of these 80 posts 40 posts were later on withdrawn by the Government. All the appellants were selected by the Commission in April, 1975 and they were appointed as Assistant Engineers by the Government as a result of which they joined on 2-6- 1975.
3. Contesting respondents Nos.2 to 5 joined service as Overseers/ Sub-Engineers. They applied for promotion as Assistant Engineers but they were not in the first instance promoted as such.
According to the West Pakistan Service of Civil Engineers (Buildings and Roads) Class 11 Rules 1967, 80 $ of vacancies in the posts of Assistant Engineers were to be filled by initial appointment and remaining 20% by promotion from amongst Sub-Engineers. In 1975 the position was that promotions had already exceeded the prescribed ratio of promotions. Consequently out of these contesting respondents Nos. 2 and 4 applied to the commission and the Government advised the Commission to interview them provisionally subject to final sanction of the Government regarding relaxation of upper-age limit in their favour. Government directed the other contesting respondents as well to apply to the Public Service Commission. However, they were promoted as Assistant Engineers on ad hoc basis for a period of 6 months vide Order, dated 29-1-1975 issued by the Government. In this order as well they were directed to apply to the Public Service Commission for their regular selection as Assistant Engineers, as these promotions were made against the vacancies which had been advertised through the Commission for initial appointment. It appears that either they did not apply to the Public Service Commission or if they had applied they were not selected for regular appointment by the Public Service Commission. They continued working as Assistant Engineers on ad-hoc basis. In order to accommodate these contesting respondents Communication and Works Department also made a proposal to the S&GAD that the existing quota of promotion of 20% be increased to 23% which should be utilized for promotion of AMIE Overseers only to which class the contesting respondents belong. However, this proposal was not accepted by the S&GAD mainly on the ground that "there should be no reservation of posts for holders of AMIE qualification for the main reason that equivalence of AMIE with Engineering Degree is itself a concession and that further concession would affect the efficiency of the service".
Therefore, when the proposal for enhancement of quota did not succeed then C & W Department took up the matter of regularisation of ad-hoc appointments of these contesting respondents.
4. The Communication and Works Department made various recommendations to the S&GA Department for regularisation of their appointments as is clear from letters dated 9-4-1975, 4-7- 1975 and 12-12-1975. In all these letters it was conceded by the Secretary, C&W Department that "all the quota posts reserved for promotion under the existing rules are held by Diploma-holder Sub- Engineers" and that these contesting respondents "may be allowed to be continued/regularised through Departmental Promotion Committee irrespective of the present promotion quota". It was also mentioned in Note dated 12-12-1975 that since 1973 "the position was that in a total cadre of S.D.Os. Comprising of 257 posts 84 posts of Assistant Engineers were being held by promotee S.D.Os. And as such "the promotees are occupying posts in excess of the promotion quota due to the circumstances explained in (b) above."
5. Ultimately the proposal of regularisation of promotions of these contesting respondents was submitted to the then Chief Minister in the form of summary in which it was proposed that their promotions be regularised in relaxation of rule 3 of Punjab Civil Services (Ratio of Recruitment)
Rules, 1973. The proposal was approved by the Chief Minister and the case was then referred to D.P.C. Consequently by Notification dated 22-4-1976 these contesting respondents were promoted on a regular basis from the following dates:- (1)Mr. Asif Ali Khan contesting respondent No. 2.17-3-1975 (2)Mr. Abdul Waheed Qureshi, contesting respondent No. 36-3-1975 (3)Raja Muhammad Aslam, contesting respondent No. 411-2-1975 (4)Mr. Bashir Ahmad, contesting respondent No. 5.1-4-1975 According to this Notification Governor of the Punjab was pleased to relax rule 3 of the Punjab Civil Services (Ratio of Recruitment) Rules, 1973 in their case. This Notification was substituted by further Notification dated 16-2-1980 in which the dates of these contesting respondents were further ante- dated as 29-1-1975, 10-2-1975, 11-2-1975 and 1-4-1975 respectively.
6. Government issued Seniority List of Assistant Engineers on 8-3-1976 in which appellants were shown but the contesting respondents were not shown as they had not by that time been regularly promoted. Second Seniority List was issued on 1-7-1978 in which appellants were shown from Serial Nos. 112 to 142 whereas the contesting respondents were shown junior to them at Serial Nos. 145 to
147. However, by letter dated 18-3-1981 Secretary, C & W Department sent an extract of amended Seniority List whereby the seniority positions of the contesting respondents were improved to Serial Nos. 110-A to 110-E. This letter shows that it was endorsed only to the contesting respondents and not to other Assistant Engineers including the appellants who were adversely affected by these changes in the Seniority Lists. Two of the appellants namely; Messrs Akhtar Abbas and another filed Appeal No. 474/418 of 1983 before this Tribunal in which they challenged the aforesaid letter dated 18-3-1981. Mr. Akhtar Abbas, appellant No.2 in that case filed an affidavit that the said amendment came to his notice on 25-9-1983 as it had not been officially endorsed to him. In that appeal present contesting respondents were also cited as respondents and they filed written statement.
By Order dated 25-4-1984 it was held by this Tribunal on the basis of the preliminary objections of the contesting respondents that appeal was premature and respondent No.1 was directed to finalize the Seniority List. As a result of that direction the final Seniority List dated 1-4-1985 which has now been impugned was issued.
7. We have heard the learned counsel for the appellants and the respondents at length. The learned counsel for the appellants has raised the following 7 points:--
(1) As the promotions of contesting respondents Nos. 2 to 5 as Asstt: Engineers were admittedly against vacancies not reserved for promotion and in excess of the promotion quota of 20% their promotions were under section 8 of Punjab Civil Servants Act, 1974 not regular and as such does not give any right of seniority over appellants.
(2) Initial promotions of contesting respondents as made in 1975 were pending regular selection by the Public Service Commission. Therefore, these continue to be ad hoc promotions by force of section 2(1) of Punjab Civil Servants Act, 1974.
(3) Relaxation of the Ratio of Recruitment Rules, 1973 alone does not make the promotions of contesting respondents as regular in view of the real and substantive bar as laid down by the Legislature in sections 2 and 8 ibid especially when these sections have neither been relaxed nor these could be relaxed by any Authority including Governor.
(4) Rule 9 of the Class II Engineering Service Rules, 1967, which prescribes 20% quota for promotions is also substantive law. This rule was never amended or relaxed by Governor. Therefore relaxation of Ratio of Recruitment Rules, 1973 which only lays down procedure of calculating ratio was a mere redundant exercise and in spite of such relaxation the real and actual legal disqualifications provided in Rule 9 continues to be operative.
(5) Alternatively, Chief Minister has relaxed Ratio of Recruitment Rules, 1973 in October 1975 and did not accord any sanction to relax these Rules retrospectively. Secondly Order, dated 22-4-1976 relaxing Ratio of Recruitment Rules, 1973 in favour of respondents has not been given retrospective effect. Thirdly, being an executive order it cannot operate retrospectively, from January/ February, 1975 especially when it is contrary to aforesaid substantive provisions of law. At best it is valid only from 22-4-1976 i.e. Date of issue of the order.
(6) Valuable right of seniority enjoyed by the appellants due to their regular appointment from 2- 6-1975, through Public Service Commission, over the contesting respondents, right upto 22-4-1976, could not be taken away by the aforesaid order, dated 22-4-1976.
(7) On merits also appellants deserve to be declared senior to contesting respondents.
8. The learned counsel for the appellants has relied upon the Judgment of Supreme Court in the cases of Federation of Pakistan v. Azam Ali and others reported as 1985 SCMR 386 as well as Imdad Ali Khan v. Pakistan reported as PLD 1986 SC 349. It has been argued that in both the cases law has been laid down authoritatively that effect of section 9 of Civil Servants Act, 1973, which exactly corresponds to section 8 of the Punjab Civil Servants Act, 1974, is that if promotions exceed the prescribed quota then these should be deemed to be ad hoc promotions under section 2(i) (a) of Civil Servants Act, 1973 which also corresponds to section 2(i) (a) of Punjab Civil Servants Act, 1974. He has relied upon the Government's own letters, dated 12-12-1975, 9-4-1975 as well as written statement filed by the Government wherein it has been categorically admitted by the Government itself that these promotions were made in excess of the prescribed promotion quota of 20%. He has further argued that according to the order of appointment of these contesting respondents as well as the relevant record of C&W Department regarding their appointment on ad hoc basis they were initially appointed against the vacancies meant for initial appointment and as such according to the provisions of section 2(i)(a) of Punjab Civil Servants Act, 1974 their appointments are under the law deemed to be ad hoc appointments although these were notified as regular. The notification of regularisation cannot override the provisions of the Act. It has been further argued that the only rule which prescribed 20% promotion quota was Rule 9 of the West Pakistan Services of Civil Engineers (Buildings and Roads, (Class II) Rules, 1967 which has never been relaxed by the Chief Minister of any other Authority. Therefore, bar of ineligibility created in rule 9 read with section 8 of Punjab Civil Servants Act is still operative against the contesting respondents and the relaxation of Ratio of Recruitmemt Rules, 1973 is of no avail to them. It has been stoutly argued that these 1973 Rules are only procedural rules of general nature, and their relaxation does not amount to regularisation of promotions. It has further been submitted that according to the judgment of Supreme Court what has been achieved by section 8 of Punjab Civil Servants Act could not be undone by the rules made under the Act. Therefore as long as the bar of ineligibility as contained in section 8 ibid remains operative, relaxation of any rule is of no consequence. It has further been argued that assuming that the relaxation has any bearing in that case also the Chief Minister has not relaxed the rules with retrospective effect. At best the relaxation is valid from 22-4-1976 the date on which the order of relaxation was passed by the Chief Minister or issued. It has been submitted that no executive order can be retrospective. It has been submitted that all the 21 appellants were selected by the Commission on their merit whereas the contesting respondents although given chances by the Government could not compete with them and as such under the cover of regularisation by the Government precedence may not be given to them over the persons who had established their merit before the Public Service Commission. It has further been submitted that according to the Government's own decision equivalence of AMIE with B.Sc. Degree is itself a concession and such a concession should not be allowed to affect those who have passed B.Sc. And were selected on their own merits. It is lastly argued that Government had not agreed to enhance the quota of promotion from 20$ to 23$ at the time of regular promotion of the contesting respondents and it was only 8 years later i.e. From 20-8-1983 that a special quota of promotion of 5$ was provided for such AMIE Sub-Engineers. It was, therefore, argued on the basis of the law laid down in the above-cited cases that the eligibility of these contesting respondents for regular promotion under section 8 of the Act was only from 20-8-1983 and not from any earlier date and promotions made in anticipation of such enhancement were contrary to law.
9. The learned counsel for the contesting respondents Messrs Abid Hassan Minto and Sardar Shahid Iqbal as well as learned District Attorney controverted the points raised by the appellants' counsel. They contended that the appeal is grossly barred by time. According to these learned counsel appellants could file appeal within 30 days from the date of issuance of Notification, dated 22-4-1976 or 16-2-1980 regarding regular promotions of the contesting respondents and the present appeal which was filed on 29-4-1985 is badly hit by limitation. For this they have relied upon the Judgment of Supreme Court reported as 1985 SCM R 1953. They have also contended that Government has inherent right to regularise the appointments of civil servants with retrospective effect as held by this Tribunal in 1982 PLC (C.S.) 632 and 784, 1984 PLC (C.S.) 276, 1984 PLC (C.S.)
308. As regards the violation of quota of promotions they have contended that since 1973 the matter remains pending with the Government throughout as AMIE Sub-Engineers had continuously been agitating the issue and ultimately they did succeed in 1983 when quota of promotion of 5% was exclusively created for them. Therefore, in view of their continued agitations and pendency of the case. Government had legally promoted them on regular basis.
10. As for as limitation is concerned the learned counsel for the contesting respondents have particularly relied upon para. 8 of the judgment 1985 SCM R 1953 in which it was held by their Lordships that since respondents in this case were aggrieved by notification of induction of the appellants issued in 1977 but they did not challenge the same until 9-8-1979, therefore, their representations before the Tribunal were time-barred and also incompetent. When confronted with the objection of limitation the learned counsel for the appellants has met the same as follows: -
(1) He has pressed para. 9 of the same judgment viz. 1985 SCM R 1953. He has submitted that in the precedent case the appellants had challenged induction into service of the respondents before the learned Federal Service Tribunal as being contrary to the rules. Their appeals were accepted by the learned Tribunal. In addition to that they had also prayed for relief of seniority over the respondents. The learned counsel for the appellants has submitted that although in para. 8 of that Judgment it was held that the representation in so far as it challenged the induction into service of the other party was time-barred yet in para. 9 it was categorically held that claim of seniority of the same party was still premature because no final seniority list had by that time been issued. It was, therefore, held by their Lordships that "Government should prepare and publish final seniority list; whereafter the respondents, if aggrieved, could have a proper cause to agitate the matter". It was further held that "as at present they cannot be said to be aggrieved by a seniority list which has not yet been circulated and the respondents appeal before the Tribunal was thus incompetent as against the seniority list too". He has, therefore, explained that the part of the said judgment which is relevant for the purpose of this case is para. 9 because appellants in the present case have only challenged the seniority of contesting respondents and that too within 30 days from the issuance of the final seniority list. He has contended that para. 8 of the judgment is not applicable because the appellants have not prayed that the promotions of the respondents be set aside and as such the respondents will continue to remain as Assistant Engineers even this appeal is accepted but respondents will only be derived o the right o seniority till vacancies in promotion quota became available.
(2) In another seniority case of Messrs Saleem Akhtar Bhally and others v. Secretary to Government of the Punjab, C&W Department and others reported as 1985 SCM R 950, Supreme Court has laid down the following law:- "The petitioners claimed their absorption in Class II service on the basis of Notification, dated 28-11- 1974 but the Tribunal has held as a fact that it was not so. We do not think that this notification can acquire legal efficacy only because it was not challenged by those affected by it.--- It has been argued by the learned counsel for the appellants that in the precedent cases (1984 PLC
(CS) 834) appeals were filed by those appellants in 1981 and a question arose before this Tribunal as to whether a Notification, dated 28-11-1974 regarding absorption /seniority of appellants and respondents was valid or not. This question arose in connection with the final seniority list issued by the Department in 1981 and challenged before the Tribunal during the same year i.e. 7 years after the issuance of Notification, dated 28-11-1974. It was held by this Tribunal that the said notification was not valid and for that reason it did not bestow seniority upon the respondents. This was upheld by the honourable Judges of Supreme Court by laying down the general proposition of law that a notification does not become legal only because it was not challenged at all by those affected by it. The learned 'counsel for the appellants contended that the present appellants are entitled to the advantage to this proposition of law laid down by the Supreme Court especially when it was laid down in connection with the seniority of the officers of the same Department.
(3) The learned counsel for the appellants has further relied upon the Supreme Court's another decision in the case of Muhammad Iqbal and another v. Secretary to Government of the Punjab and 37 others as 1986 SCM R 1 The relevant portion relied upon by the appellants is quoted below:- "There are certain peripheral matters to be attended. One such is the contention that certain lists of seniority were not challenged at all e.g. Of 1982 or were not challenged in the form and manner in which it was done during the argument and certain concessions and admissions had been made.
The other is that certain controversies relating to the same matter had been decided and the parties got reconciled to them and whether it will be proper to ignore these facts. In Bhally's case one aspect of the argument was dealt with by observing as follows:- "We do not think that the notification acquire legal efficacy only because it was not challenged by those affected by it."
The learned counsel for the appellants has submitted that 1986 precedent case also related to the seniority of Engineers of Irrigation Department and the above question clearly deals with the identical situation that even if parties had accepted and got reconciled with certain old controversies and decisions even then those old controversies/ decisions can be ignored on the basis of the legal dictum that a notification cannot acquire legal efficacy simply because it was not challenged by those affected by it.
(4) It has been further submitted by the learned counsel for the appellants that the respondents are estopped by their own conduct to raise their objections at this stage because in the previous appeal No.474/418 the respondents resisted the appeal of the present appellants on the ground that, that appeal was premature in 1983, no final seniority list having been till then published by the Government. Consequently this Tribunal delivered judgment, dated 25-4-1984 declaring that appeal as premature and directed the Government to issue final seniority list. It has been pointed out that these contesting respondents accepted the aforesaid decision. Dated 25-4-1984 and did not file any appeal before the Supreme Court of Pakistan. Consequently that decision was duly implemented and acted upon by the Department resulting in issuance of the impugned Final List and as such the respondents cannot now raise objection of limitation.
(5) The learned counsel for the appellant also relied upon the decision of this Tribunal in case of Rustam Ali and others reported as 1984 PLC (C.S.) 276 and an unreported case of Ishfaq Hussain v.
Secretary to Government of the Punjab, Agricultural Department (Case No.613/895 of 1984 decided on 16-2-1986). In both these cases this particular controversy was raised but objections of limitation were turned down by this Tribunal, on the ground that grievances of seniority arise to civil servants only on the publication of final seniority list.
(6) He has also relied upon PLD 1981 SC 612. In that case Appeal was filed before the Federal Tribunal in 1979 and the following objection as noted by their Lordships of Supreme Court in PLD 1981 SC 612 was raised:- "His objections in substance were that the appointment of the appellant to a higher grade (senior scale Class I corresponding to NPS-18) in 1962 was against the law and the practice of the Department and was not regular and could not be of avail to them in matching their seniority with him."
However, after reproducing the above objection at page 214 their Lordships held that the Appeal filed before the Federal Service Tribunal in 1979 was premature as no final seniority list had been issued. It may be submitted that Supreme Court did not hold that the Appeal was time-barred merely because it had challenged the appointment made in 1962.
11. We have given our anxious thought to the arguments of the parties. As regards merits of the case it has been admitted by the Government in their letters, dated 12-12-1975 (Annexure 'E'), 9-4- 1975 (Annexure 'C') and para. 4 of the written statement that the promotions of the contesting respondents were in excess of 20% quota of promotion reserved for Sub-Engineers. Therefore, in view of these admissions their promotions were directly in violation of the mandatory condition of eligibility as laid down in section 8 of the Punjab Civil Servants Act, 1974. As to what is the effect of such violation and promotion made in excess of the quota the following portions of the said Judgment 1985 SCMR 386 clinch the matter:- "It is correct that in the case of contesting respondents this rule had been followed inasmuch as the departmental promotion Committee had processed their cases, recommended them and the competent authority had approved them. This, however, by itself does not create the eligibility or the right nor alters the statutory position. The eligibility of a departmental candidate for promotion has been expressly provided for in section 9 of the Act in the following words (reproduced in extenso): Both the contentions of the learned counsel for the contesting respondents that------------and the regularity of their appointment had to be tested independently of section 9, are untenable.
It follows from section 9 of Act, which provision the Tribunal failed to even take note of, that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion.
It is not disputed that the reservation was in the ratio of 75 to 25 per cent in favour of the direct recruits. The departmental candidates were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method.
The direct recruitment takes some time in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act."
Therefore the contention of the respondents that Government has inherent right to regularise promotion with retrospective effect is not tenable in view the substantive provisions of law and authoritative interpretation of such law. No doubt Government has such a right if there is no violation of mandatory provisions of Act. For instance, if B the promotions are within the prescribed quota, vacancies are available from back dates and promotees are duly qualified etc. Then Government has undoubtedly right to regularise such promotions with retrospective effect but as held in 1985 SCMR 699 "all appointments have to be made in accordance with the rules, whether they are made by the President or by a person authorised by President in that behalf "
Similarly the argument of the learned counsel for the respondents that since rule 3 of Ratio of Recruitment Rules, 1973 has been relaxed in favour of contesting respondents, the provisions of rule 9 of Class D II Rules, 1967 specifically laying down quota of 20% for promotion as well as provisions of section 8 of the Act also stood relaxed and these provisions be ignored, is also not tenable. In the same ruling their Lordships have dealt with the point whether rules framed under the Act can abolish what the Act has permitted. The following portions from the same ruling are quoted with advantage:- "The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other Provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of rule 7 in isolation is not in accord with the express provisions of section 9 of the Act.
As section 9 itself provides for reservation of quota for promotees the rules framed under the Act could not abolish what the Act permitted.
If section 9 of the Act is not kept in view there may be scope for arguing that the expression 'regular appointment' has been given an extended meaning. However, if the provisions of section 9 of the Act are kept in view then the meaning given to the expression regular appointment' will appear to be in accord not only with section 9 but also with the other provisions i.e. Subsection (2) of section 2 of Civil Servants Act; section 8, subsection (4) of the Act and section 2, subsection (1), clause (f) of the act. There is no inconsistency or repugnancy. On the contrary, it would appear to be in harmony.
This instruction had to be read alongwith section 9 of the Civil Servants Act which created an eligibility for departmental employees for promotion to the higher grade only against reserved posts and none else. The Tribunal, according to the learned counsel, not only failed to take note of section 9 of the Civil Servants Act but also ignored its own decision on the subject given in the case of Malik Muhammad Amin and others v. Secretary to Government of Pakistan, Ministry of Defence and others 1981 PLC (C.S.) 391.
We also agree that Ratio of Recruitment Rule which do not lay downs ratio of promotions to the posts of Assistant Engineers are neither specific nor substantive Rules but are only procedural rules and their relaxation is of no avail to the respondents. In this case also we have noticed from summary approved by Chief Minister, minutes of D.P.C. As well as correspondence between C&W Department and SGA&I1 Department that existence of section 8 was altogether ignored.
12. We also agree with the learned counsel for the appellants that since the respondents were initially appointed against the vacancies of direct recruitment, which fact is borne out from record, their promotions were, according to the express provision of section 2(1)(a) of Punjab Civil Servants Act, had the character of ad hoc appointment and no Authority had the power to regularise the same with retrospective effect as it amounts to overriding the said provisions of the Act. We again quote the following two portions from the same judgment in support of this contention:- "If their promotion had been made against the quota of direct recruits pending the direct recruitment then such an appointment on the express word of the Act (S.2(1)(a) of the Act) had the character of an ad hoc appointment and no authority had the power to override the provisions of the Act and it was not in fact done.
As the initial promotion of respondents was not against vacancies reserved for promotion in terms of section 9 of the Act for which alone they were eligible for promotion their promotion would be regular from the date that a vacancy reserved under the rules for departmental promotion occurred."
13. Therefore, in view of the above-quoted law we are in no doubt that the promotions of contesting respondents in excess of the promotion quota and against vacancies of direct recruitment and pending selections by the Public Service Commission did not bestow upon them the right of seniority.
14. As regards limitation we respectfully follow the following dictum of their Lordships laid down in 1985 SCMR 950 and 1986 SCMR 1:- "We do not think that this notification can acquire legal efficacy only because it was not challenged by those affected by it."
1985 SCMR 1953 also supports appellants' case.
15. In view of the above-detailed analysis of the entire facts of the case and law so enunciated from time to time we proceed to accept the appeal, set aside the impugned seniority list in so far as it relates to the parties and declare the appellants senior to the respondents as Assistant Engineers.
There will be no order as to cost.
M.Y.H.