' SHAFIUR RAHMAN, J.--Leave to appeal was granted to the Government of Balochistan under Article 212(3) of the Constitution to examine whether the Service Tribunal had by majority judgment dated 1-12-1984 correctly interpreted the provisions of P.C.S.(Executive Branch) Rules, 1964 (hereinafter referred to as the Rules of 1964) for determining inter se seniority of the direct recruits and the promotees.
2. By a notification of the Government of Balochistan dated the 15th October, 1981 published in the official Gazette of 3rd of November, 1981, the final seniority list of officers of the former P.C.S. (E.B.) cadre of Balochistan Province as it stood on 15-10-1981, was notified for general information. In this seniority list the three direct recruits namely, Marjan Khan, the contesting respondent in Civil Appeal No, 12-0 of 1985 was shown at serial No, 45, his date of induction into service being 10-10- 1972, Khuda Dad Khan, the contesting respondent in Civil Appeal No, 13-0 of 1985 was shown at serial No,44, his date of entry into the service being 9-10-1972, Muhammad Irfan Kasi, the contesting respondent in Civil Appeal No, 14-0 of 1985 whose date of entry into service was 6-5-1974, was shown at serial No,
67. They were all direct recruits. They felt that they have been wrongly fixed in seniority against the promotees. According to them the rules of 1964 provided that 50% of the posts in the cadre shall go to the direct recruits while the rest of the 50% shall go to the promotees. As according to them, the cadre strength comprised 59 posts, not more than 30 posts could be availed of by the promotees while in fact excepting the eight direct recruits, 51 posts were occupied by the promotees. According to them, seniority could be claimed only against the posts reserved for promotion and not against posts not so reserved for promotion. On that view of the matter it was contended that upto serial No,30, the promotees could claim the benefit of seniority and thereafter the direct recruits had to be adjusted and the other 21 promotees had to be denied seniority.
3. The Government's approach to the issue was that there were 44 posts of the P.C.S. (Executive Branch) cadre before the date of integration i.e, 15-10-1955. There were then no rules fixing the quota of promotees and direct recruits. The practice was to make recruitment by promotion alone.
It was after integration that by a circular (called integration circular) dated 15-11-1955 it was provided that till the framing of the Service Rules for West Pakistan as against the pre-integration posts, the recruitment was to continue as under the practice prevailing before pre-integration but the additional posts created after integration were to be divided fifty fifty b.Etween the direct recruits and the promotees. The same principle, according to the Government, was incoporated in the Rules of 1964. Strict compliance with the integration circular and thereafter with the Rules has taken place as 15 posts had been added to the 44 pre-integration posts making a total of 59. As against these 15 posts made available after integration and prior to the framing of the Rules of 1964, the equal number of direct recruits as were required to be appointed by the integration circular had in fact been appointed.
4. Two Members of the Service Tribunal agreed with the view advanced by the contesting respondents in the three appeals who had separately approached the Tribunal, and upheld their claim observing as hereunder:-- "It has been admitted by the parties that at the time of creation of the province of Balochistan, there were 59 cadre posts. Out of which, 43 were regular posts and 4 + 4 + 8 = 16 were other posts.
These posts were to be apportioned in accordance with the West Pakistan Civil Service (E.B.) Rules, 1964. According to these rules, these cadre posts were to be distributed in a ratio 50 : 50 between, departmental candidates and direct recruits. Hence 22 regular posts fell to the quota of departmental candidates and the remaining 21 regular posts to the share of direct recruits. Similar will be the case in respect of 16 other posts. However, the practical position as accepted by the respondents was that out of these 59 posts 49 posts were occupied by departmental candidates and only 8 posts were occupied by direct candidates. Hence the departmental candidates have a genuine claim on 22 regular posts and 8 other posts and can claim seniority. After 30th post, they are undisputedly occupying the posts of direct candidates and they cannot be absorbed regularly against such vacancies and will be officiating on temporary basis till vacancies fall in their share.
As such, they will be having no claim on such posts and no claim of seniority."
' The learned Chairman of the Tribunal, however, took a different view and upheld the view-point of the Government and held as under: "The respondent No, 1 has explained in para. 2(3) of the reply that the percentage between direct recruits and promotees was adhered to in accordance with sub-rules 2 and 9 of Rule 5. The names of such officers have also been mentioned by the respondent No, 1, therefore, the appellants have no grievances."
5. The majority view prevailed and the contesting respondents, who were the appellants before the Service Tribunal, were declared senior to the promotees against which the Government has made a grievance.
6. At the stage of grant of leave to appeal it was noticed that in the petitions for leave to appeal the Government of Balochistan had impleaded as respondent only the appellants of the Service Appeals before the Tribunal but omitted to implcad the other respondents against whom those service appeals were directed. While granting leave to appeal a direction was given to implead them which has been done. Out of 32 respondents so impleaded, eight have requested for their transposition as appellants and this we allow. A list has also been submitted of 19 promotees who have either expired or retired from service.
7. The factual aspect of the case namely, that there were 44 posts in the P.C.S. (E.B.) Cadre of Balochistan prior to its integration into West Pakistan has not been seriously disputed. It has also been not denied that there existed no rules of recruitment and the practice was to make appointments to the cadre posts by promotion from the subordinate services. A reference has been made by the contesting respondents to the Rules framed by the Agent to the Governor- General on 27th of November, 1933 in exercise of the powers conferred by Rules 44 and 54 of the Civil Services (Classification, Control and Appeal) Rules, which do not prescribe any such rule of recruitment that it had to be by promotion and not by direct recruitment. In the context a reference has been made to the appointment of Mr.Faqir Muhammad Baloch, appearing at Sr. No,3, who was appointed directly on regular basis on 14-2-1954. His case was of a direct appointment. The position which emerges is that the pre-integration Rules provided no hard and fast rule or quota for the promotees and the direct recruits and the practice generally was of making recruitments by promotion and exceptionally by direct recruitment.
8. During the period 15-10-1955 (i.e, after integration) and 10th of December, 1964 (i.e, the framing of the Rules) the integration circular and its paras. 6, 19 and 20 governed the situation. These are reproduced as hereunder:- "6. The extent of direct recruitment to the various grades of the Provincial Services is indicated in the Annexure. Direct recruitment will be made on an All-West Pakistan basis.
19. In determining whether a group vacancy is to be filled by direct recruitment or by promotion, so far as the pre-unification officers are concerned the percentages of promotion vacancies which obtained in the Group in question immediately before the 14th October, 1955, and not the percentage now prescribed under paragraph 6 above, will be taken into consideration. The later percentages will become operative in the case of such vacancies after all pre-unification officers in the Group Sub-cadres suitable for promotion have been promoted.
20. Any new posts created after the 13th October,1955, in the Provincial Services will be filled by direct recruitment or promotion on an All-West Pakistan basis. In respect of such posts the percentages of direct recruitment as laid down in paragraph 6 above will apply."
(Portions which are of particular importance to the case in hand, have been underlined).
9. On the strength of these instructions, if 15 posts became available after integration and before the framing of the Rules of 1964, half i.e, 50% had to be filled by direct recruitment and 50% by promotion. The list of old P.C.S. (E.B.) Officers as it stood on 30-6-1970 shows that eight persons were directly recruited during the period 13-10-1964 to 19-9-1968. They, therefore, obtained their full share of the posts earmarked for them under the integration circular and the rules.
10. The controversy has taken a serious turn because one view happened to be that on the enforcement of 1964 Rules the entire cadre strength had to be forthwith proportionately divided between the direct recruits and the promotees and not the vacancies becoming available on and after enforcement of the Rules of 1964. In terms of law the question arose is of giving a prospective or a retrospective effect to the Rules of 1964 in the matter of fixation of quotas for appointments to the services. If one were to correct the previous imbalance in the quota by reference to Rules of 1964, not only the operation of the rules, earlier in force will get disturbed but also it will amount to giving a retrospective effect to Rules of 1964. The contesting respondents have filed the Rules of certain other services like the West Pakistan Irrigation Engineers Service (Class I) Rules, 1967 and the West Pakistan Services of Civil Engineers (Buildings & Roads) (Class II) Rules, 1967 in which these Rules reach the retrospect and make provision even for the pre-integration vacancies. This is correct but those Rules cannot he of avail to the constesting respondents because there was a manifest intention expressed in clear words to give them retrospective effect, where in the past no substantive appointments had been made. The Rules of 1964 do not exhibit these features and there is nothing in it either express or implied to suggest that it had to be given a retrospective effect. As it has no retrospective content, on the strength of integration circular the posts newly created after 15-10-1955 and those available after the framing of the rules, were available for distribution 50 : 50 between the direct recruits and the promotees on the strength of integration circular and the Rules of 1964. Such posts are only 15 in number. The quota cannot, therefore, be spread to the whole cadre including the pre-integration posts.
' The contesting respondents have also relied on certain circulars interpreting the rules. For example the circular dated 3-6-1972 interpreted the rules as hereunder:- "Government have therefore, decided that the ratio of recruitment should be applied to the total number of posts in a cadre and not to the vacancies which are to be filled at 'any given time. In other words allocation of vacancies to the direct recruits and promotecs or transferees should be arranged in such a way that they maintain their prescribed percentage in the over-all strength of the cadre. It is possible that some imbalance may have to be tolerated for short periods, but in the long run the tendency should always be to restore the equilibrium.
' In order to give effect to the above decision, necessary amendment will have to be made in every set of Recruitment/Service Rules. The possibility of issuing an omnibus notification covering all the issues has been examined, but, in the opinion of the Law Department, separate notifications will have to be issued for each service. I am, therefore, to request you to kindly examine each set of rules pertaining to the services/posts under your administrative control and furnish in each case draft amending notifications (in triplicate) for further processing in the S&GAD."
' Another circular on the same subject dated 28-7-1977 provided as hereunder:- "Subject: CALCULATION OF SHARE IN RESPECT OF DIRECT RECRUITS AND PROMOTEES.
Sir, ' I am directed to refer to the subject noted above, and to say that the various Recruitment Rules of the duly constituted services provide for filling of posts by initial recruitment or by promotion or by both initial recruitment and promotion according to the percentage prescribed in the relevant Service Rules. In the latter case the shares of the direct recruitment and departmental promotions arc required to be worked out on the total number of posts in respective grades and the vacancies occurring from time to time are to be filled from among the candidates in whose quota the vacancies occur. It has however, come to the notice of the Government that the administrative Departments usually calculate the quotas of the direct recruits and promotees on the number of vacancies as and when these occur. Obviously this is not correct, unjust distribution results and sometimes the category having smaller share is altogether eliminated in making appointments.
' I am, therefore, to request you to kindly calculate share in existing vacancies taking into account the ratio of existing incumbences."
12. The difficulty with regard to these circulars is that they do not lay down a rule but they interpret a rule. Further, they envisage the amendment of the rule also which was not done. In the process of departmental instructions, rules which are prospective in nature cannot he made retrospective. If retrospectivity was sought to be achieved then the Rules of 1964 had to he got amended as was intended in the instructions reproduced above. That having not been done at any stage, the Rules of 1964 will have prospective operation and the vacancies as and when occur after the enforcement of those Rules, will require distribution as per quota allocated to the direct recruits and the promotees. Similar instructions with regard to the Federal Government employees exist at pages 181 and others of the Estacode 1983 Edition.
13. Another ground taken up by the respondents/appellants before the Tribunal was that some of the cadre posts were temporary in nature and for that reason at least those of the promotees who were working or had been promoted against temporary posts had to rank junior to the direct recruits on permanent posts. Such a preference is claimed on the basis of Rule 9 sub-rule (2) clause (b) of the Rules of 1964. There are two impediments in giving full effect to this contention of the respondents. In the first place sub-rule (3) was added to rule 9 on 18-6-1970 providing as hereunder:- "Notwithstanding anything contained in sub-rule (2) the persons appointed in a particular year, otherwise than by initial recruitment, in accordance with provisions of sub-rule (9) of Rule 5, shall rank senior to persons appointed by initial recruitment, during that year."
' This Rule overrides sub-rule (2) and amongst appointees of the same year, irrespective of the fact whether it is against substantive vacancy or temporary, the promotec has been given preference over the direct recruit. There is another and a more compelling reason why the rule relied upon by the respondents has to yield. It was continued as a rule under subsection (2) of section 25 of the Civil Servants Act which provides as hereunder: "Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, he deemed to be rules made under this Act."
' Subsection (4) of section 8 of the Civil Servants Act provides as hereunder: "Seniority in the post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: ' Provided that civil servants who are selected for promotion to a higher post, in one batch shall on their promotion to the higher post retain their inter se seniority as in the lower grade."
14. The promotee has to reckon his seniority from the date of regular appointment irrespective of the fact whether it is a permanent or temporary appointment. The Rules relied upon by the respondents will, therefore, have to be read with the reservation contained in subsection (2) of section 25 read with subsection (4) of section 8 of the Civil Servants Act.
15. In view of the discussion above it is clear that the seniority list as drawn up in 1981 and impugned before the Service Tribunal suffers from no legal defect or infirmity such as could justify interference by the Tribunal. The appeals are accepted, the judgment of the Tribunal is set aside and the Service Appeals filed by the respondents, stand dismissed. No order is made with regard to the costs.