This petition under Article 98 of the 1962-Constitulon is directed against the order dated 24-3-71 passed by the Civil Services (Appellate) Tribunal, Punjab, Lahore, whereby the appeal preferred by Mian Abdul Ghafoor respondent No. 3 herein) was accepted and he was declared to be senior to Haji Ghulam Mustafa (petitioner herein). The facts, which form the background, may be stated as under.
Both the petitioner and respondent No. 3 were Agricultural Assistants in the Agriculture Department.
The petitioner having joined service on 31-3-47 while the date of joining service of respondent No. 3 was 28-9-49. The petitioner was, therefore, senior to respondent No. 3 in the cadre of Agriculture Assistants On 26-7-63, the Governor of West Pakistan was pleased to order the promotions of the petitioner as well as respondent No, 3.-- to the West Pakistan Agriculture Service Class II in officiating capacity on purely temporary basis as a stopgap measure subject to the condition that their selection is approved by the West Pakistan Public Service Commission. In this order, it was further made clear that here temporary promotions would confer no right or title to the posts and no one shall claim any right or seniority on the basis of the said orders, which were passed in the interest of administrative exigency. However, it was stated in this order Oat the promotions would take effect from the dates of Joining of the incumbents, of the posts and their seniority would be regulated by their seniority in the cadre of Agriculture Assistants. Thus, according to this order, the petitioner was to rank senior to respondent No. 3. However, although the petitioner was senior to the respondent the cadre of Agriculture Assistants, the West Pakistan Public Service Commission approved the promotion of respondent No. 3 before that of the petitioner. This is evident from the orders passed by the Government on 14-9-65 and 16-11-66. The first mentioned order dated 14-9- 65 is to the following effect: "On tine recommendations of the West Pakistan Public Service Commission, the Governor of West Pakistan is pleased to promote Mr. Abdul Ghafoor to the post of Assistant Fruit Specialist is W. P. A. S. Class it subject to the condition that if his senior Mr. Ghulam Mustafa, whose case is under consideration i9 also promoted in Class 11, he would rank senior to Mr. Abdul Ghafoor In Class II."
Whereas the order dated November 16; 1966, reads as follows: "On the recommendations of the West Pakistan Public Service Commission, Lahore, the Governor of West Pakistan, is pleased to promote Haji Ghulam Mustafa to the post of Assistant Horticulturist in W. P. A. S. If, under Director, Ayub, Agricultural Research Institute, Lyallpur. Mr. Abdul Ghafoor should be deemed to be senior to Haji Ghulam Mustafa."
2. A perusal of the above two orders shows that although in the order dated 14-9-65 it was stated that the promotion of respondent No. 3 was subject to the condition that If Mr. Ghulam Mustafa (the petitioner herein) whose case was under consideration, was also promoted In Class It, he would rank senior to respondent No. 3 in Class It but in the order of November 16, 1966, while ordering the promotion of the petitioner In Class II, it wag, however, laid down that respondent No. 3 would be deemed to be senior to the petitioner. This rider was added on the basis of the recommendation of the West Pakistan Public Service Commission on 8-11-66, a copy of which has been attached and the relevant part of it reads as follows:- "I am directed to state that the West Pakistan Public Service Commission have reconsidered the case and now they agree to the promotion of Haji Ghulam Mustafa to the post of Assistant Horticulturist In W. P. A. S. Class 11. He would however, be deemed to have been superseded by his junior Mr. Abdul Ghafoor who has been approved earlier to him,"
3. The petitioner made representation against the decision of the Government declaring respondent No. 3 senior to him but these representations were rejected. He then issued a notice under section 80 of the C. P. C. As a result of this, the case was re-- examined and on the basis of the opinion of the Law Department and the Solicitor, the petitioner was declared senior to respon-- dent No. 3 vide order of respondent No. 1 dated 4-9-70. The basis of this order is contained in the letter dated 19-F-70 from the Deputy Secretary (Regulations), S & GAD, Government of West Pakistan, Lahore, to the Secretary, Punjab Pubic Service Commission, Lahore, which may be quoted hereunder in extensor:- ---I am directed to refer to the former West Pakistan Public Service Commission letter No. 1807- PSC-CB-II-3-69/190, dated the 15-C;-70 on the subject cited above and to say that since the cases of seniority were specifically excluded from the Commission's jurisdiction through an amendment of the Limitation of Functions Regulations, the Commission's advice on the question of seniority can at best have only persuasive value. In the present case, it has failed to persuade the legal experts of Government viz. the Law Department and Solicitor, both of whom are of the view that Haji Ghulam Mustafa is entitled to maintain tits seniority over Mr. Abdul Ghafoor as they were promoted by one and the same notification The date of continuous appointment being the same, they will bring forward their seniority in the lower cadre and Haji Ghulam Mustafa continue to rank senior to Mr. Abdul Ghafoor. While approving of the promotion of Mr. Abdul Ghafoor, the Commission had added a rider that if his senior Mr. Ghulam Mustafa whose case is separately under consideration is also appointed, he would rank senior to Mr. Abdul Ghafoor in Class II. This rider cannot be repudiated now by saving that it was Incorrect. Even if it was so, a Government servant cannot be penalised for the mistake of the Commission. Seniority is a very valuable and sacred right and cannot be impaired by unilateral decisions. I am, therefore, to Inform t you that for the reasons given above, Government have regretfully decided to ignore the advice of the West Pakistan P. S. Commission on a question which was beyond their jurisdiction."
4. The respondent No. 3. feeling aggrieved, filed an appeal against the order dated 4.9.70 before the Civil Services (Appellate) Tribunal, Lahore, which was heard by a Bench consisting of Mr. Bashir Ahmad Khan and Professor Ashfaq Ali Khan. The learned Tribunal vide its order dated 24-3-71 accepted the appeal and declared responders No. 3 tea be senior to respondent No. 1. Hence this writ petition.
5. The first point that has been raised before me Is that Mr. Bashir Ahmad Khan, a member of the Appellate Tribunal who delivered tile Impugned judgment, had already given his opinion as Deputy Secretary (Regulations) against the petitioner and therefore, the order dated 243.71 was vitiated on account of bias as the term Is understood on law.' Consequently, a report wasp called for from him on this aspect of the matter. The learned Member sent his report vide his letter dated 12-5-71, in which he stated that he had-no recollection of the fact that be had dealt with the case of tire Petitioner as Deputy Secretary (Regulations), Services rail General Administration Department, nor was this fact ever mentioned before the Tribunal when the case war argued before it. However, in order to verify the exact position, he had called a report from the Deputy Secretary (Regulations)
Services and General Administration Department and that Mr. B. A. Malli, Deputy Secretary (Regulation), S fit GAD, had scrutinised the record and found that two notes had been recorded by him on 17-6-69 and 3-7-70 which he had incorporated in the letter addressed to him.
The relevant tsar' of the letter ofMr. B. A. Malli may be reproduced hereunder: " . . . the case of Haji Ghulam 6lustafa was received in the Regulation Wing of S & GAD in February 1969 ands the following note was recorded by you on 17-6-69.
Haji Ghulam Mustafa was nut approved by the Commission for promotion. According to Explanation U of rule 9 (b) sae the West Pakistan Agriculture Department (Research Wiry) (Class 11)
Rules; 1963, if a junior officer in a lower grade is promoted to a higher grade by supers: ding his senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently. It seems that the Commission at first wanted to consider the merits of the case of Haji Ghulam Mustafa but then they finally concluded that he was not fit for promotion and advised the A. D. accordingly. The fact that he continued In Class II does not help hire, tie could only be promoted to Class II with the advice of the Commission and his appoint--ment by the A. D. and his continuation after the advice of the Commission cannot confer any right of seniority on him. He was definitely considered and found to be unfit for promotion.
The Commission eventually approved his promotion and also advised, according to Explanation 11 of rule 9 (1) (b) that he will be junior to Mr. Abdul Ghafoor. The view taken by the Commission is correct and tire advice of the Solicitor is not consistent with Rules, Law Department may kindly advise.
(2) On receipt of Law Department's advice which was forwarded to Haji Ghulam Mustafa the then Section Officer R-11 proposed that before a final decision was taken In this case, a copy of the advice of Law Department may be furnished to the West Pakistan PSC for further justifying its recommend--ations as required by rule 19(2) of the West Pakistan Government Rules of Business, which was approved by you on 6-12-1969,
(3) The views of the Commission were examined and the following dote was recorded by you on 3- 7-70.
'The Law Department have tried to interpret the intention of the Public Service Commission to pare.
23 that the promotion of Haji Ghulam Mustafa was approved by the Commission with retrospective effect, This presumption does not seem to be correct. The proper course would be to find out from the Public Service Commission the intention of their order: We may enquire from them whether the Commission have approved the promotion of Haji Ghulam Mustafa to W. P. A. S. Class Is retrospectively or from the date of their advice, It may be stated that Explanation 11 of rule 9 (1) (b) could only become applicable if Haji Ghulam Mustafa was promoted from the date of advice, otherwise, he would retain hits seniority, as he was senior In the subordinate service to Mr. About Ghafoor. A copy of the advice of the Law Department may also be furnished to the Public Service commission for their comments. Put up 1). F. .A. to the commission.
(4) The case was not further dealt with by you and the final decision was taken after you had left."
A perusal of the above Notes recorded by Mr. Bashir Ahmad shows that in the note recorded on 17- 6-1969 the definite opinion has been expressed by him that he agreed with the view taken by the Commission that the petitioner would be junior to respondent No'
3. The second Note recorded on 3-7-1970, also shows that he continued to adhere to his opinion that the petitioner should rank junior to respondent No. 3 because the opinion of the Law Department, which was favourable to the petitioner, was not considered to be correct by him. It is, therefore, clear that the objection raised by the petitioner that the Tribunal which decided the appeal preferred by respondent No. 3, was improperly constituted inasmuch as one of its members had already formed an opinion with regard to the matter, in some other capacity, is well taken.
6. Learned counsel for respondent No. 3, however, argued that no weight could be given to the above objection because under clause (3) (6) of Art. 98 of the 1962-Constitution, the High Court was completely prohibited from considering disputes, inter alia, relating to the question of seniority of Public Servants and in so far as the present case related to the fixation o' seniority of two Government Servants, this writ petition was not main--tainable. He further submitted that in so far as the petitioner did not object to the constitution of the Tribunal when the matter has argued before it, he was precluded from raising this question for the first time before this Court. It was also submitted that notwithstanding the fact that Mr. Bashir Ahmad Khan had dealt with the case of the petitioner as a Deputy Secretary (Regulations) .he was not disqualified from hearing the appeal, preferred by respondent No. 3 because the notes recorded by him dealt with the interpretation of rule 9 of the West Pakistan Agricultural Service, Research Wing, Class II Rules and that the rule of disqualification, on account of bias, operates only when it can be shown that the authority deciding the matter has a bias against a particular person and not otherwise. In this connection, It was explained that rule 9 of the above Rules Is a standard rule on the subject of seniority of Public Servants, which rule Mr. Bashir Ahmad Khan, in hit capacity as Deputy Secretary (Regulations) must have interpreted in a large number of cases and if the rule of bias was given an extended interpretation, sought to be given to it by the petitioner then Mr. Bashir Ahmad Khan would have to be disqualified from heating appeals even in cages wherein he had not actually given any opinion but his interpretation of the rule, in some other case, was adverse to the stand of one of the parties In the appeal. It was accordingly submitted that Mr. Bashir Ahmad Khan could not be regarded as biased in this case.
7. The law in this country is well settled that where a person has expre3sed his opinion about a matter at some stage while dealing with It in one capacity,- he is disqualified from nearing and taking part in the decision of the same matter in some other capacity. In Ghulam Rasul v. Crown. (PLD 1951 FC 62) the facts were that the Legal Remembrancer sifter having advised the Crown to file an appeal from an acquittal in a murder case was subsequently appointed a Judge of the High Court and was a member of the Bench who heard the appeal and an objection was taken to the constitution of the Bench. The Federal Court observed that it was highly undesirable that a judicial officer, whatever be his rank or position, should act judicially in a case in which he had occasion to investigate extra judicially and in which he had formed an opinion adversely to a party against whom he had directed a prosecution or the institution of an appeal or revision. It was further observed that nothing should be allowed to happen in s case, which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have a fair trial. It is essential that justice must not only be done but must manifestly be seem to be done." It was accordingly held that the impropriety in the constitution of the Bench was not on irregularity but an illegality. The above principle was adopted by this Court in a case where the validity of an order of an Administrative Body was challenged under Article 98 of the Constitution of 1962. In that case, a member of the Road Transport Corporation who had served a show-cause notice on an employee after enquiry, took part in proceedings of the meeting of the Corporation at which his report against the employee was considered and punishment Proposed. It was held that such a Member was disqualified to attend the meeting of the Corporation and the decision of the Corporation was held to be "against law" and "without lawful authority". (Muhammad Abdullah v. Road Transport Corporation (2)). 1(p the course of the judgment in this case, it was observed "If one of the (Members of a Tribunal is biased or, which is the same thing, nay prejudged the issue against a party, it Is bound to cause reasonable apprehension in the mind of the party that he is not likely to get a fair and impartial deal at the hands of tribunal . . . . . the defect goes to the root of the Constitution of the Tribunal which-becomes improperly constituted." (Underlining' is by me). In the light of the exposition of the law by the Federal Court and this Court, it must be held that the Tribunal, which decided the appeal preferred by respondent No. 3, Including as it did Mr. Bashir Ahmad Khan as one of its members, was an improperly constituted tribunal and the decision given by It is "against law" and "without lawful authority".
8. The question, however, remains as to whether this Court can entertain a petition raising a dispute relating to the question of seniority in exercise of the jurisdiction under Article 98 of the 1962-Constitution. Under Article 98 (3) (b) of the said Constitution, an order cannot be made under clause (PLD 1964 Lah. 743) of Article 93 on the application made by or in relation to any--other person in the service of Pakistan in respect of the terms and conditions except a term and condition that is specified In the said Constitution. No doubt, the question of seniority is not a tern and condition of service specified in the 1962.
Constitution and, therefore, an order in pursuance of a petition Under Article 98 which has the effect of interfering with an order made by the competent authority In relation to the seniority of persons in the service of Pakistan cannot be made by this Court. But the petitioner, in this case, is nut seeking an order from this Court in relation to the fixation of his seniority. On the other hand, Hs grievance is that the order of the competent authority passed on 4-9-1970, fixing the seniority of- the parties has been upset by a Tribunal, which could not decide the matter. He explains that the impugned order was passed in pursuance of an appeal under section 4 of the West Pakistan Civil Service Appellate Tribunals Ordinance, 1969. Under the said law, any Government servant aggrieved by an order of the competent authority fixing his seniority could prefer an appeal before the Tribunal and the Tribunal, constituted under section 5, was empowered to bear and decide the said appeal. Counsel states that the question that is Involved herein is as to whether the Tribunal which heard and decided the appeal preferred under section' 4 of the Ordinance could have heard and decided it and not whether the order passed by it declaring respondent No. 3 as senior to the petitioner was correct or not. He submits that since under the law, the order of the competent authority fixing the seniority of the petitioner could be upset only by e, legally constituted tribunal the order passed by an illegally constituted Tribunal can be challenged. It follows that the question that requires determination is, whether the learned counsel for respondent is on a sound footing in contending that a petition even to challenge the order of the Tribunal on the ground that it was improperly constituted is not maintainable on the ground that the order passed by It pertains to a matter dealing with the question of fixation of seniority of Public Servants? The standpoint of the learned counsel of respondent loo. 3 cannot be accepted because the perusal of Article 98 of the Constitution shoos that the provisions of Article 98 (3) (b) do not bar the passing of an order under Clause (2) of Art. 98 in such a case. I hold therefore, that a petition under Art. 98 (of the 1962- Constitution) wherein the order of the Service Tribunal was Impugned on the ground that the said order was passed by an improperly constituted Tribunal was maintainable and that this Court was fully competent to adjudicate upon the same.
9. It is not without interest to mention that this Court, despite the bar, in respect of orders passed by Election Tribunal, provided for, by Art 171 of the Constitution, has held that the said bar does not prohibit the High Courts from exercising jurisdic--tion under Article 98 of the Constitution where the said Tribunals passed orders which were in direct contravention of the mandatory provisions of law under which the Tribunal was required to act or where the Tribunal passing the order lacked the competence to hear the matter or the members constituting the Tribunal stood disqualified by bias or otherwise. In the above circumstances. It was observed the orders passed by the Election Tribunals could be declared to be "without lawful authority by the High Court in exercise of its jurisdiction under Article 92. The following passage from the judgment of Mr. Justice Yaqub Ali In Jamal Shah v. Election Commission (PLD 1966 SC 1) is directly relevant in this context and may be reproduced hereunder with advantage: "An act done or proceeding taken would be with lawful authority if the person performing the functions Is invested, with the necessary capacity and the conditions for the exercise of the authority are substantially complied with except where there be found disqualification by bias or fraud or malice which will be destructive of all power under law" (Underlining" is mine),
9. As a result of the foregoing discussion my conclusion is that as in the present case one of the members of the Tribunal which passed the impugned order (Mr. Bashir Ahmad Khan) stood disqualified by bias (as the term is understood in law), the order of the Tribunal was not in accordance with law and was "without lawful authority."
9-A. I may now consider the plea that the petitioner was estopped from raising the objection that the Tribunal was improperly constituted, in so far as the petitioner had submitted to the jurisdiction of the Tribunal and not raised this objection before the Tribunal. In support of this plea, the learned counsel for respondent No. 3 relied on the judgment of the Supreme Court in the case of Ghulam Mohy-ud-din (PLD 1964 SC 829). In that case, the provisions of Article 2 (4) of the Laws (Continuance in Force) Order (1 of 1958) whereby the High Courts were empowered to Issue prerogative writs of certiorari, rn7ndamus, quo warranto, prohibition and habeas corpus was considered and it was held that the weir of certiorari should not be granted to a person who had stood by and allowed the Tribunal to usurp tie jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequences of something done by that person himself. The situation herein is altogether different. The petitioner here is not praying for the issuance of a writ of certiorari, but seeking a dec1aradon that the impugned order should be declared to be against law and "without lawful authority", under the previsions of Art. 98 of the 1962-Constitution. Moreover, the petitioner herein had not invoked the jurisdiction of the Tribunal, but had been summoned before it at the behest of respondent No. 3. In such a situation, the judgment of the Supreme Court, in the case of Muhammad Afzal v. Board of Revenue, West Pakistan (PLD 1967 SC 314), is more in point wherein it was observed that "by mere submission, in the capacity of a respondent, to the authority of the Member the petitioner could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived hi, right to challenge the Member's power to interfere with the order of Commissioner".
10. This brings me to the last submission, on behalf of respondent No. 3 that the rule of disqu31i8cation, on account of bias, is applicable in a situation where one of the members of the Tribunal has a bias against a particular person and is not applicable in a situation where he may have expressed an opinion In connection with the interpretation of a statutory rule, la the normal course of duty. This submission cannot be accepted for two reasons. Firstly, no such exception can be spelled out to the rule laid down by the Federal Court and this Court in the judgments referred to above, and secondly even on the promises laid by the learned counsel for the respondent it cannot be held that Mr. Bashir Ahmad Khan was not biased against the petitioner. The note recorded by him on 17-6-1969 indicates that he was not merely interpreting rule 9 of the Service Rules but discussing the circumstances of the petitioner's case In detail and agreeing with the opinion of the Public Service Commission and disagreeing with that of the Solicitor and was advising a reference to the Law Department so that his opinion, to preference to that of the Solicitor's, may be approved.
However, this was not to be. Accordingly, in the second note dated 3-7-1970, which was recorded after the advice of Law Department which was favourable to the petitioner, had been received, Mr. Bashir Ahmad Khan expressed dissatisfaction with it and observed that certain assumptions were made, by the Law Department. He accordingly suggested that the comments of the Public Service Commission should again be called for. In these circumstances, there is no escape from the conclusion that when Mr. Bashir Ahmad Khan heard the appeal preferred by respondent No. 3 against the petitioners he was already firmly of the opinion that the former was entitled to rank senior to the latter. In this background, when he had prejudged the issue against the petitioner it is not possible to contend that he should not be considered to be "biased" against him. He was, therefore, disqualified from being a member of the Tribunal, which heard and decided the appeal preferred against the order' of the Government dated 4-9-1970.
12. Some other questions, relating to the merits of the case, were also argued before me. However, in view of my decision on this preliminary point, it is unnecessary to discuss the said questions.
13. The result is that this writ petition must succeed. The order dated 24-3-1971, passed by the Tribunal is accordingly declar--ed to be "contrary to law" and to be "without lawful authority" and is hereby set aside. The appeal preferred by respondent No. 3 against the order of respondent No. 1 dated 4-9-1970, shall be deemed to be still pending and shall be heard afresh by a com--petent Tribunal. The writ petition is disposed of in these terms. The parties, however, are left to bear their own costs.