' SHAFIUR RAHMAN, J.---Leave to appeal was granted in these two appeals under Article 212(3) of the Constitution against the judgment of the Service Tribunal dated 25-10-1984 to examine the question of seniority of the Army personnel inducted into the Police Service of Pakistan from a date prior to the amendment made in law in 1981, making provision for it. The effect of judgment of the Service Tribunal in Civil Appeal No, 49(R) of 1987 relating to a different occupational group deciding the same question of law was being pressed into service by the appellants for sustaining their claim.
C.A. 385 of 1988.
2. The factual background of this Appeal is that Jahangir Mirza joined service on 20th March, 1971 as Planning Officer, Planning Commission, a post in Grade-17. He appeared in the C.S.S. Examination and was successful in getting appointment as Income-tax Officer. He took second chance at the C.S.S. Examination and was finally appointed in the Police Service of Pakistan where he took over as Assistant Superintendent of Police (under training) on 28-12-1972. On 8-2-1975, this Appellant was promoted to officiate as Superintendent of Police in Grade-18 with special pay. In the seniority list of Superintendents of Police, this appellant was shown at serial No, 63 while, according to him his proper place was at No,
16. This seniority list was a Provisional list and the appellant represented against his placement in it. While his representation was pending and no final seniority list had been issued, the Government of Pakistan promoted some of the respondents to Grade-18 vide Notification No, 10/5/81-E3(Police) dated 6-1-1983. The appellant represented against this promotion and getting no response approached the Service Tribunal. His prayer before the Tribunal was as hereunder:- "A declaration be made to the effect that the appellant is senior to the respondents and was entitled to be considered for promotion to the next higher grade and the promotion of the respondents without considering the appellant was illegal. It is also prayed that the entry of respondents Nos. 4 to 29 was violative of law and shall not in any manner affect the service and other terms and conditions of service of the appellant as guaranteed by letter of appointment issued by the Government of Pakistan at the time of his recruitment.
' It is further prayed that respondent No, 1 be very kindly directed to prepare seniority list/Gradation list afresh and in accordance with law/rules on the subject, giving the appellant his due place over and above the respondents."
C.A. No,386 of 1988.
3. Malik Lala-i-Yasrab, appellant in Civil Appeal No,386 of 1988 was appointed to the Police Service of Pakistan and he took over as Assistant Superintendent of Police (under Training) on 18th December, 1972. He was promoted as Superintendent of Police on 30th of September, 1974 and took over the post on 14th October, 1974. The Provisional Seniority List of Grade-18 Officers in the Police was circulated on 28-8-1980 and this appellant was shown at serial No,
62. He represented against this seniority list. His representation remained unanswered. The Provisional Seniority List was also not finalized. Some of the respondents (Nos. 9, 10, 13, 33, 35 and 37) against whom he claimed seniority were promoted to Grade-19 by Notification dated 6-1-1983. Once again the appellant represented against being not considered for promotion in the correct seniority position but getting no response, he approached the Service Tribunal and he prayed as hereunder:- "A declaration be made to the effect that the appellant is senior to the respondents and was entitled to be considered for promotion to the next higher grade and the promotion of the respondents without considering the appellant was illegal. It is also prayed that the entry of respondents Nos. 4 to 29 was violative of law and shall not in any manner affect the service and other terms and conditions of service of the appellant as guaranteed by letter of appointment issued by the Government of Pakistan at the time of his recruitment.
' It is further prayed that respondent No,1 be very kindly directed to prepare seniority List/Gradation list afresh and in accordance with law/rules on the subject, giving the appellant his due place over and above the respondents and any such further relief as may appear just and proper to this Honourable Tribunal in all the circumstances of this case and also award the appellant the cost of this appeal."
4. By the impugned judgment,the Service Tribunal disposed of nine appeals filed before it. Two appeals against that judgment are now before us. The case of the appellants before the Tribunal was that the law did not permit the induction or appointment of Armed Forces personnel into the Police Service of Pakistan and the appointment of the respondents who held ranks in the Army, to the Police Service of Pakistan was not regular. As only regular appointees could find a place on the seniority list and that too from the date of regularisation of their induction, the respondents could not be given seniority over the appellants who entered service in Grade-18 prior to their entry which could not have taken place prior to 1980. The seniority list should have been, according to them, settled first and thereafter the eligible persons considered in order of seniority for promotion to the next higher Grade-19. That having not been done, not only the treatment of the Government to hold respondents senior to the appellants was improper, the promotions so made, got vitiated.
5. The Service Tribunal had in the very opening part of its judgment summarised the claim of the appellant as hereunder:- "(a) A declaration to the effect that he is senior to Respondents 4 to 41 and was entitled to be considered for promotion from Grades-18 to 19 prior to these Respondents.
(b) The promotion of Respondents 10, 13 and 33 without considering the case of the appellant to declared as illegal.
(c) The entry of Respondents 4 to 29, being violative of law should not be allowed to affect in any manner the terms and conditions of service of the Appellant, as guaranteed by the letter of appointment issued to him by the Government of Pakistan at the time of his recruitment.
(d) A direction to Respondent No,] to prepare seniority/gradation list afresh, giving the Appellant his due place over and above Respondents 4 to 41."
' The main controversy in appeals before the Tribunal was disposed of by it by observing as hereunder:-- "So far as the question of the induction of the officers of the Armed ' Forces is concerned, we find that this took place as far back as 1975 and 1976. If the Appellant felt that his interests were affected by the induction of these persons into the Service, he should have made his representation at the time the induction took place. However, he did not do so at the time the cause of action arose. The first time he raised this point was on 15-10-1980, when he submitted his objection to the provisional gradation list. This was clearly time-barred and we do not think any useful purpose would he served by going into the question whether the induction of the officers from the Armed Force into the Police Group was right and proper. As a result of the decision taken, for administrative reasons the members of the Armed Forces have been inducted into various services and occupational groups and these having taken effect, the persons so inducted have during all these years acquired a vested right which cannot be taken away on the basis of the alleged violation of the terms and conditions of other members of the group already in service at the time of the induction of these persons."
6. Mr. S.M. Zafar, Senior Advocate, the learned counsel for the appellant Jahangir Mirza, contended that the appellants at no stage objected to the induction of the respondents into the Police Service of Pakistan as a fact. On both the occasions when they felt aggrieved and represented to the Government, they objected to the seniority list, provisional and the one utilized for the purposes of making promotion from Grade-18 to Grade-19. Their objection to the seniority was based on the assumption which had its basis in law, that only those regularly appointed to the service, could claim seniority. The appointment of the respondents could be shown to be regular only from 1980 onwards and not prior to it. Hence, their seniority could not be taken to a date earlier to 1980. It was in order to demonstrate that their appointments became regular only after 1980 an effort was made to show that there was no cover of law for their induction into Police Service of Pakistan prior to 1980 and if they were so inducted, it could only be within the framework of law then existing, namely, as ad-hoc appointment, temporary appointment or secondment from the Army or contract appointment. Outside these categories there was no provision for making appointments from the Armed Forces. Appointment in none of the above-mentioned categories qualified them for claiming seniority over these regularly appointed like the appellants to the All-Pakistan Service.
7. Mr. Abid Hassan Minto, Advocate, the learned counsel representing the appellant Malik Lala-i- Yasrab has adopted the arguments advanced by Mr. S.M. Zafar, Advocate, and has also pointed out to the Written Statement submitted by the Government in another case relating to similar recruitment from the Armed Forces. Reliance has also been placed on Ordinance No, LI of 1980 amending the Federal Public Service Commission Ordinance, 1977 and validating by its section 3 such appointments as from 5th day of July, 1977 and not earlier appointments.
8. The Federal Government has placed a number of documents on record in order to show that under a Scheme approved by the competent authority, induction of the Armed Forces personnel started in 1972 and the procedure prescribed by the rule-making authority was strictly adhered to.
A special high-powered Selection Committee was set up to substitute the Central Selection Board which recommended certain officers and the competent authority thereupon passed order of their appointment in Grade-18 of the Police Service. The matter was reviewed at the highest level more than once and every time not only the induction of the respondents but also their seniority as contained in the impugned Provisional Seniority List was affirmed and sanctified. A reference was also made to the exercise competently undertaken under Section 12-A of the Civil Servants Act (hereinafter referred to as the Act), wherein the review of all such appointments had taken place and those of the respondents were sanctified and their seniority as from the date of induction recognized under the powers possessed by the President, the rule-making authority, in respect of these officers.
9. The resolution of the controversy involved in these appeals will not be possible without reference to the historical and contemporary, legal and factual background giving rise to the controversy.
Articles 240, 241 and 242 of the Constitution provided as hereunder:-- "240. Appointments to service of Pakistan and conditions of service.--Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined--
(a) in the case of services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament; and
(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
Explanation.--In this Article, 'All-Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Parliament.
241. Existing rules, etc. To continue.-- Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government.
242. Public Service Commission.--(1) Parliament in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province, may, by law, provide for the establishment and constitution of a Public Service Commission.
(2) A Public Service Commission shall perform such functions as may be prescribed by law."
10. The then Prime Minister of Pakistan on a broadcast to the nation on 20th of August, 1973, spelt out the features of the new civil service that was to be established in the country through the laws to be framed, in the following words:-- "The new system will have the following features:--
(a) All the services and cadres will be merged into a unified grading structure with equality of opportunity for all who enter the service at any stage based on the required professional and specialised competence necessary for each job.
(b) All 'classes' among Government servants will be abolished and similarly replaced by a unified grading structure, a peon or equivalent at the bottom, a Secretary or Departmental Head at the top. The existing classification of the services into Class I tc IV will no longer operate. The road to the top will be open to all on merit.
(c) The use of 'service' labels will be discontinued forthwith.
(d) The Unified Structure will enable promotions to the higher posts throughout the range of public service for horizontal movements from one cadre to another including the movement of technical personnel to the cadre of general management. There will also be scope for out of turn promotion to exceptionally able officers.
(e) The correct grading of each post will be determined by job evaluation.
(f) There will be provision for entry into Government service for talented individuals from the private sector in fields such as banking, insurance, industry and trade.
"Above all, the new service structure will enable the Government to gain the full contribution of scientists, engineers, doctors, economists, accountants, statisticians and other professionals and specialists in policy-making, management and administration. We have indeed already taken steps to ensure that the Government can draw on the widest possible range of talent. We invited applicants last year for lateral entry into Foreign Service and the senior Secretariat posts. Over 200 candidates have been given suitable appointments. We intend to continue this search for talent."
11. Civil Servants Ordinance, 1973 (Ordinance No, XIV of 1973) came to be enacted on 15th August, 1973. It was substituted by the Civil Servants Act, 1973 (Act LXXI of 1973) (hereinafter referred to as the Act). Section 5 of the Act provided as hereunder:-- "5. Appointments.---Appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf."
' Sections 23 and 25 of the Act are relevant in the context and provided as hereunder:-- "23. Saving.---Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: ' Provided that, where this Act or any rule is applicable to the case of a civil servant, these cases shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule.
25. Rules.---(1) The President, or any person authorised by the President in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.
(2) 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, be deemed to be rules made under this Act."
12. The Federal Public Service Commission Act, 1973, made provision in section 5 as hereunder:-- ,.5. Functions of the Commission. ---The functions of the Commission shall be--
(a) to conduct tests and examinations for recruitment to--
(i) the All-Pakistan Services and such posts in connection with the affairs of the Federation, and
(ii) such posts in or under a corporation or other body or organisation set up by the Federal Government under any law, as may be prescribed; and
(b) to advise the President on such matters as may be prescribed relating to the terms and conditions of service of persons who are members of an All-Pakistan Service or hold civil servant posts in connection with the affairs of the Federation."
' The Rules framed under section 6 of the Federal Public Service provided in Rules 4 and 5 as hereunder:-- "4. Notwithstanding anything contained in rule 3, shall not conduct test for recruitment to posts which are
(i) on contract for a specified period; or
(ii) for a period of six months or less pending selection of a basis of test conducted by the Commission: ' Provided that the above period may be extended:-
(a) for a further period of six months with the approval of the Commission if a requisition for filling the post was sent to the Commission within two months of the filling of the post on ad hoc basis and the Commission had failed to nominate a candidate; or
(b) in any other case, by order of the President; or
(iii) by transfer of an officer of the Armed Forces of Pakistan or an officer already holding a post on regular basis in equivalent grade under the Federal or a Provincial Government.
Explanation:--For the purpose of clause (iii), 'regular basis' means other than ad-hoc basis, or on contract, or on temporary basis for a specified period.
(5) Notwithstanding anything contained in rule 3, the President may, in the public interest, specify posts which may be filled, without reference to the Commission, by persons possessing such qualifications and experience and in such manner as he may determine."
13. By a Memorandum, dated 22nd of October, 1973, all the Secretaries were informed about the implications of the Federal Public Service Commission Rules, para. 2 of which is relevant. The relevant portion of para. 2 is as hereunder:-- "A perusal of the Rules would show that the functions of the Commission have been confined to initial recruitment to posts in Grades-16 and above (corresponding to what were previously known as Gazetted Class II and Class I posts) with certain exceptions as in the Schedule. The Commission will not be concerned with appointments made by promotion or transfer."
14. The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (hereinafter referred to as the Appointment Rules) were enforced on 20th October, 1973 and they made by Rule 6, the Prime Minister the competent authority for making appointments to Grade-16 and above. Rule 7 required that `promotions and transfers to posts in Grades-19 to 21' and the 'posts in Grade-18 which carry a Special Pay' shall be made on the recommendation of the Central Selection Board. Rule 8 provided that "only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be." Rule 9 provided that "Appointments by transfer shall be made from amongst the persons holding appointment on a regular basis in the same grade in which the post to be filled exists".
15. On the 2nd of March, 1972, an amendment in the Rules of Business with regard to the submission of cases was circulated and paras. 2, 3 and 4 are relevant and these are reproduced as hereunder:-- "(2) It has now been decided with the approval of the President that in partial modification of the provisions of the Rules of Business all such cases which require President's approval will henceforth be submitted to the Minister for Establishment who will dispose of the cases in the manner stated in para 4 below.
(3) It may be noted that before sending such cases to the Minister for Establishment, the recommendation of the Minister-in-charge of the Ministry concerned should first be obtained. In the case of services controlled by the Establishment Division, this action will be initiated by the Establishment Division themselves. It may also be noted that references to the Central Selection Board/Advisory Committee as required under the existing rules will continue to be made and their recommendations should be obtained where necessary before the cases are submitted to the Ministers.
(4) Cases relating to appointments, disciplinary matters and those of extension of service of officers above the status of Joint Secretary will be submitted to the President by the Minister for Establishment. All the other cases relating to officers/posts upto and including that of Joint Secretary and equivalent will be decided by the Minister for Establishment."
16. The first appointment to the Police Service from the Armed Forces Personnel that took place during the relevant period was that of Maj. Mian Zaheer Ahmad, respondent No, 4 and it started on a note dated 20-11-1973 as hereunder approved by the Prime Minister on the same date:- "During the dinner in Mangla on November 8, the Prime Minister was graciously pleased to remark that he was getting my son--Major Zaheer Ahmed--released from the Army for service in the Police Department. His REPATRIATION LEAVE is expiring on December 14. It is requested that necessary orders may very kindly be issued so that he can join the POLICE SERVICE on the termination of his leave.
(Sd.)
(BASHIR AHMED)
20-11-1973.
SECRETARY.
2. Submitted for orders. After the Prime Minister has kindly approved, the papers will be referred to Establishment Secretary for issue of formal orders.
(Sd.) Secretary 20-11-1973.
The Prime Minister.
3. Approved.
(Sd.)
Prime Minister 20-11-1973."
' This Officer received the posting order in compliance with the approval of the Prime Minister on 7th March, 1974 and the order expressed as hereunder:-- "NOTIFICATION ' On release from the Army Major Mian Zaheer Ahmad is appointed as Superintendent of Police in Grade-18 with effect from the date he assumes charge of the post and until further orders. His services are placed at the disposal of the Government of the Punjab.
(Sd.)
(M.S. ATHAR), Deputy Secretary to the Government of Pakistan."
' He was confirmed on 27th of October, 1976 by an Order as hereunder:-- "NOTIFICATION Major Mian Zaheer Ahmad, Superintendent of Police is confirmed in the rank of Superintendent of Police in Grade-18 in the Police Group with effect from 18th March, 1974."
' The Prime Minister in the meantime established a Special Committee to examine the following question which it did consider on 11-4-1974:-- "The meeting had been convened with a view to discuss the question of resettlement of Defence personnel on their release from service, particularly after the return of POWs. According to a recent study carried out by the GHQ it is estimated that about 85,000 personnel including about 500 officers, were to be released from the Army as normal cases of superannuation and as a result of post-war adjustments of manpower dictated by financial constraints and very long period of captivity as POWs in India."
' This Committee comprised Cabinet Secretary, Defence Secretary, Secretary Ministry of Labour and Works, Secretary Ministry of Industries and Secretary Establishment Division. The Minutes of the Meeting further disclosed that the following matter was discussed:-- "The Chairman clarified the existing Government policy of throwing open to competition the jobs of Deputy Secretary and Joint Secretary in the Central Government. Both serving and retired officers were being considered, for the first time, for jobs in the District Management Group, Tribal Pool and the Police. He stated that the Establishment Division, had sometime back, asked for a panel of suitable officers from the Ministry of Defence for Police Service, but the Ministry could not spare any officer. This offer was still open and the Ministry of Defence should forward names of suitable officers of rank of Major and Lt.-Colonel who will be considered for absorption in the Police Service.
He clarified the position that even the retired officers had been made eligible to appear in the lateral entry examination held early this year for senior posts in the Central Secretariat."
' In response to the decisions of this Committee recommendations were received from the Ministry of Defence and a Committee of the Establishment Division, Interior Division, Defence Division and Cabinet Division Secretaries examined their suitability on 20th March, 1975 and made recommendations for the appointment of respondents Nos. 5 to 13. This was approved by the Minister of State for Establishment on 28th March, 1975 and these respondents received their appointment letters on 25th June, 1975. One of the conditions of their appointment was that "you will be subject to such further terms and conditions of service, rules of conduct and discipline as may be prescribed from time to time by Government and applicable to members of the All Pakistan Unified Grades." Respondents Nos. 16 to 21 were inducted in Police Group from various dates in the year 1976 by a notification, dated the 15th of November, 1976 and so were the respondents Nos. 25 to 27 by a separate Notification of the same date.
17. All these appointments were reviewed by a Review Committee established under section 12-A of the Civil Servants Act and after testing their loyalty, competence and the nature of appointments made, they were regularized. The two questions which received the pointed attention of the departmental Authorities and are relevant in the context of these two appeals are the legality of the appointments so made, adjudged by the law, concerning consultation with the Federal Public Service Commission for such appointments and the other concerning the rule of seniority to be applied to such inducted officers, whether it was to be from the date of their initial induction or after proper verification and regularisation which had followed subsequently.
18. On the first question the Summary submitted to the President was in the following terms:- "The appointment of officers of the Armed Forces to civil posts made uptil 17th December, 1977, is governed by the Federal Public Service Commission Act, 1973 and the rules made thereunder.
Under the provisions of this Act and the rules made thereunder, the President had the powers to appoint, by transfer, serving officers of the Armed Forces to civil posts, on a permanent basis, without reference to the F.P.S.C. He also had the powers to employ retired officers of the Armed Forces on contract, for specified periods, without reference to the F.P.S.C. Appointments of serving or retired Armed Forces Officers made upto 17th December, 1977, in accorance with these provisions do not, therefore, require any regularization. A list of officers falling in this category is at Annexure I.
(3) The Federal Public Service Commission Ordinance 1977, promulgated on 17th December, 1977, altered the above position. Under the provisions of this Ordinance and the rules made under it, the powers of the President to appoint Armed Forces Officers to civil posts, without reference to the F.P.S.C., were limited to re-employment or appointment on contract, for a period not exceeding two years. However, the F.P.S.C. Act 1973 as well as the F.P.S.C. Ordinance 1977 did not affect the practice of appointing serving officers of the Armed Forces to civil posts, temporarily, on secondment.
(4) With a view to restore powers of the President as they existed before 17th December, 1977, the Federal Public Service Commission (Function) Rules, 1978 were amended on 25th June, 1980. This amendment read with the Civil Servants (Appointment, Transfer, Promotion) Rules, 1973 enables the appointing authority to appoint serving or retired officers of the Armed Forces to civil posts, without reference to the Federal Public Service Commission, provided the appointments are made in accordance with the equivalence formula. The F.P.S.C. Ordinance 1977 was also amended on the same lines in October, 1980 While all appointments made on secondment or on contract for periods not exceeding two years were in accordance with the then prevalent rules and as such required no regularization, the remaining appointments were not coveted by those rules. However, all appointments falling in the latter category now stand regularized under section 3 of the Federal Public Service Commission (Amendment) Ordinance 1980, which reads as follows:--
(3) Validation. -All appointments of persons who are, or have been, officers of the Armed Forces of Pakistan, made on or after the 5th day of July, 1977, but before the 25th day of June, 1980, without reference to the ' Federal Public Service Commission shall be made to have been validly made."
' The President finally approved the recommendations and the appointments made during the specified period were validated with reference to section 3 of Ordinance No, LI of 1980 reproduced above in the Summary submitted to the President.
19. As regards the question of seniority, the following Summary was put up to the President:-- "Amendment to section 8 of the Civil Servants Act to merely. Accommodate the case of lateral entrants is not advisable for obvious reasons and is not recommended by the Establishment Division. The alternative is to invoke the powers of the President under section 23 of the Civil Servants Act, which reads as follows:-- ' Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable.
' Thus it is within the powers of the President under section 23 to approve the proposal as at para. 9 above.
(13) In case the President is pleased to approve the proposal at para. 9, this may be done in exercise of the powers under section 23 of the Civil Servants Act..
(14) The case of officers who were not considered fit for their original post but have been appointed in post of lower grade or a service group different from the group in which they were originally appointed is quite different and it is recommended that they should count their seniority from the date of their re-appointment."
' Para. 9 of the Summary submitted to the President and referred to in paras. 12 and 13 of the Summary reads as follows:-- "9. Equity and justice demand that the following aspects may be kept in view in respect of the seniority of all officers inducted into service through the Lateral Entry Scheme:--
(a) The seniority of all those Lateral Entrants who have been approved for retention after review of their cases should remain unaltered. There appears no justification for them to lose original seniority once the Government has approved their retention.
(b) The inter se seniority of all the Lateral Entrants who have been approved for retention should also remain unchanged."
' The President approved the principle of seniority applied to these officers in May, 1981.
20. The questions which directly arise in the appeals are the legality of the appointment of serving Armed Forces Personnel to Police Service taking place between 1974 to 1980 and the rule of seniority applicable to them vis-a-vis the appellants and others similarly placed. The objection of the respondents that the appellants should have objected at the time of the induction of these Army Officers into Police Service and not subsequently when the Provincial Seniority List was circulated had been adequately answered that the appointment itself could not aggrieve them because being outside the method of recruitment prescribed by law it had to be treated as ad- hoc and they could not compete with the appellants in the matter of seniority as ad-hoc. It was only when they were allowed to compete in seniority and gain a position in seniority over the appellants treating the appointment to be legal and proper and not ad hoc that the real grievance arose to the appellants.
21. Section 5 of the Civil Servants Act empowered the President or a person authorised by the President to make appointments to All-Pakistan Service etc., in the prescribed manner. "Prescribed" implied as prescribed by the rules. In case the rules were not framed, the designated authority's power to make the appointments was neither curtailed nor postponed till the framing of the Rules.
This aspect of the matter was dealt with authoritatively by this Court in M.A.U. Khan v. Rana M.
Sultan and another PLD 1974 SC 228 in the following words:-- "It is universally recognised that as regulatory statutes have to deal with a variety of situations and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and, therefore, the Legislature delegates its power to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out the purposes of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such an eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakable terms."
22. In the case before us the rules were not altogether absent but there were in existence the Appointment Rules and Rules 7 to 9 thereof prescribed how appointments by transfer had to be made, and the rules, as contended by the appellants excluded the transfer from the Armed Forces.
Nevertheless, it has been authoritatively held by this Court in the case of Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary Food and Agriculture and another PLD 1971 SC 846 as hereunder:-- "Thus, the order of the Governor dated the 1st June, 1965, by which he approved the method of selection of candidates for appointment as Assistant Agriculture Engineers after their successful completion of the training, is an order having the statutory force. Clause (2) of Article 178 of the 1962 Constitution empowers the Governor to make rules relating to recruitment to civil service and civil posts in connection with the affairs of the Province. This clause does not provide that the recruitment rules are to be made in any particular manner, nor does it require previous publication of the rules in the official Gazette. That being so, the Governor's order, dated the 1st June, 1965 prescribing the special method for appointment of 46 candidates to the posts of Assistant Agricultural Engineers was as operative as the Recruitment Rules themselves made by the Governor on the 18th June, 1963. By the Governor's aforesaid order, the earlier Recruitment Rules shall be deemed to have been modified so far as recruitment of the 46 posts of Assistant Agricultural Engineers was concerned. In other words, the departure made by the Governor's order of the 1st June, 1965 as regards selection for training and eventual appointment as Assistant Agricultural Engineers amounted to a special rule of recruitment governing these 46 posts only in order to implement the scheme called 'Development of land and provision of machinery for augmenting water supply in West Pakistan'. The view as above was taken by the High Court of West Pakistan, Lahore in the case of the Province of the Punjab v. Ch. Nazir Hussain PLD 1956 Lah. 556 as affirmed by this Court in its decision reported in PLD 1960 SC 130. There are also other decisions of this Court to support the view that the order of the Governor, dated the 1st June, 1965, has all the characteristics of statutory rules. These are cases of Pakistan v. Abdul Hamid PLD 1961 SC 105 and the Province of West Pakistan v. Din Muhammad PLD 1964 SC 21. Both these decisions were later cited with approval by this Court in the case of Muhammad Naseem Ahmad v. Azra Feroz Bakht PLD 1968 SC 37."
23. Section 5 of the Federal Public Service Commission Ordinance 1973 and that of the Federal Public Service Commission Act, 1973, when prescribing that the functions of the Commission shall be to conduct tests and examinations for recruitment to the All-Pakistan Services, did not thereby restrict the method of recruitment to those services only by test and examination. It only meant that wherever the tests and examinations were prescribed, they were to be conducted by the Federal Public Service Commission.
24. In the Federal Public Service Commission Rules, 1973, Rule 4 made an exception in the following words:-- "Notwithstanding anything contained in rule 3, the Commission shall not conduct test for recruitment to posts which are filled--
(iii) by transfer of an officer of the Armed Forces of Pakistan or an officer already holding a post on regular basis in equivalent grade under the Federal or a Provincial Government."
' The appellants want that this Rule be treated as ultra vires being repugnant and exceeding the Rule making authority conferred by Federal Public Service Commission Act, 1973. Mr. S.M. Zafar, Senior Advocate, representing the appellant in Civil Appeal No, 385 of 1988, on the other hand wants that the rule should be given harmonious construction and All-Pakistan Services which had been separately and differently treated in the Act should be considered excluded from it. This clause (iii) in rule 4 cannot be given such a restricted meaning. Having already held that the mention of tests and examinations for certain specified services did not amount to specification of it as the only method of recruitment to the exclusion of any and every other method, this clause of the rules acquires a substantive content dispensing with the consultation of the Public Service Commission in such appointments. That being so, the exclusion of the category of transfer would not be inconsistent with the Act or in excess of the rule-making power conferred by law. Therefore, the appointments made could not be violative of these provisions.
26. The subsequent invalidity in the appointments, if any, after 5th July, 1977 or the 17th December, 1977 has been taken care of by section 3 of the Ordinance No, LI of 1980 which validates all such appointments and no scope is left for finding fault with those appointments after such validation.
27. As regards the rights of the civil servants in seniority, the leading judgment of this Court is that of Bashir Ahmad Khan v. Mahmud Ali Khan Chowdhury and others PLD 1960 SC 195. The following characteristics of the seniority rules and the right to seniority were specified in it:-- "It cannot be denied that 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 well as to the maintenance of proper discipline and order within the service, and consequentially to the public interest which is deeply involved in the maintenance of a proper spirit of order and a" discipline within the service.
Therefore, the giving by the High Court of a considered interpretation of the Rules by which the somewhat complex question of placement, upon the same list of officers who entered that list through different channels, so far from being an inconvenient interference with the day-to-day control of that service by the Government, is indeed an action calculated to assist the Government in exercising such control peacefully and harmoniously. That such assistance was necessary in this particular case appears only too clearly from the fact that in the course of some six years between 1951 and 1957, the Central Government had attempted to interpret the Rules . In question on no less than five occasions and on each such occasion, it had been obliged to vary from the interpretation previously held or given.
' As to the contention that these Rules are 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 the Government at any time, it is necessary to say that he Rules in question do not possess the alleged character in any sense whatsoever. They are statutory rules of the highest validity, and as has been said above, they have the quality of settling the important matter of seniority as among officers of a service whose duties are directly connected with the maintenance of law and order, and are, therefore, intimately bound up with a very important aspect of the public interest."
' This judgment on the question of seniority got eroded when in the Constitution of 1962 a specific provision was made that a Constitution Petition in service matters would not lie except in the matters specified in the Constitution. As seniority was not one of the matters specified, a Constitution Petition in respect of it was made incompetent. The seniority was further relegated when in the Act a specific declaration was made in section 8 that nothing herein contained shall be construed to confer any vested right to a particular seniority to such service, cadre or grade as the case may be. In the absence of seniority being a vested right, the rule-making authority or the appointing authority could for sufficient reasons disturb it. In the present case this was expressly done in the case of Police Officers, when the President formally approved of the principle that the officers of the Armed Forces inducted into the Police Service of Pakistan shall have H seniority of regularisation from the date of their induction and not from the date of regularisation. He was competent to pass such an Order and having done so, the respondents shall benefit from it if from no other provision and or principle noticed above.
28. In the year 1985, to be exact on 23rd October, 1985, came to be promulgated the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, under section 25 of the Civil Servants Act. The seniority list under challenge in these appeals was made the subject-matter of dispensation in rule 3 and rule 11. The relevant portion of rule 3 reads as hereunder:-- "(3) Change in nomenclature and composition.---(1) Notwithstanding anything contained in the All-Pakistan Services (Change in Nomenclature) Rules, 1973, the Police Group in the All-Pakistan Unified Grades is renamed as the Police Service of Pakistan.
(2) The Police Service of Pakistan shall consist of:
(a) Persons appointed or deemed to have been appointed to the Police Service of Pakistan in accordance with the Police Service of Pakistan (Composition and Cadre) Rules, 1969;
(b) Persons, other than those mentioned in clause (a), appointed to the Police Group whose names appeared in the gradation list issued on the 28th August, 1980 and persons appointed in the Police Group after that date but before the commencement of these rules; and
(c) Persons appointed to the Service in accordance with these rules." The relevant portion of rule 11 reads as hereunder:-- "(11) Seniority.---(1) The members of the Service referred to in clauses (a) and (b) of sub-rule (2) of rule 3 shall retain the same seniority as is shown in the gradation list as it stood immediately before the commencement of these rules."
29. These rules in the absence of seniority being a vested right of the civil servant concerned completely take over and frustrate any objections that could be taken to the seniority list, dated 28th August, 1980.
30. The conclusions, therefore, are that the Public Service Commission Act, 1973 did not prohibit but rather permitted the appointment of serving Armed Forces personnel to civil posts or to All- Pakistan Services without consulting the Public Service Commission. The appointment rules by limiting the transfer to persons holding appointment on regular basis in the same grade in which the post to be filled exists excluded such a transfer of serving Armed Forces personnel, the latter being not in the same grade. Nevertheless the rule-making Authority also competent to make such appointments, made a specific policy departure from these rules in deciding upon and either himself appointing or appointing on the recommendation of the Special Selection Committee serving Armed Forces personnel like the named respondents to the Police Service of Pakistan. Such a departure was well within the competence of the rule-making/appointing authority in view of the decision in Mukhtiar Ahmad's case referred to above. In any case, seniority being not one of the vested rights protected under the Act, and the competent authority having regularised their appointment and settled the rule of their seniority from the date of induction and as contained in seniority list dated 28-8-1980, the appellants cannot have a subsisting legal grievance against it.
31. As regards the decision of the Service Tribunal in Civil Appeal No, 49-R of 1987 passed on 9-5- 1988, there are numerous distinguishing features making it irrelevant, the most important being that no statutory instrument like the Police Service of Pakistan (Composition, Cadre and Seniority)
Rules, 1985 existed in the field to take full charge of the situation, the controversy and the seniority.
32. In view of the discussion above, both the appeals are liable to be dismissed and are hereby dismissed.