SALAHUDDIN CHAUDHRI (MEMBER).--Under the Central Engineering Service Class-1 Recruitment Rules published on the 13th of August, 1951 the Central Engineering Service, Class-I comprised a number of superior posts as follows:--
(1) Executive Engineer Electrical Engineer
(2) Administrative (Selection Posts)
(a) Superintending Engineer
(b) Chief Engineers.
These rules were repealed by SRO-897(I)/84 of 11-10-1984 wherein under the heading "Conditions for Promotion" the following Rule 3 was enacted: "CONDITIONS FOR PROMOTION"
4. Promotion to posts in column 1 below shall be made by selection from amongst the persons who hold the posts specified in column 2 on a regular basis and possess the experience prescribed in column 3: Name and basic Pay scale of the Post.Persons Eligible Condition of Eligiblilty
1. Director General (BPS-21)Chief Engineer (BPS- 20)22 Years Service in BPS-17 and above or 17 years service in BPS-18 in case of direct recruits in BPS-18 or 10 years service in BPS-19 or 5 years service in BPS-20 in case of direct recruits in BPS-20.
2. Chief Engineer (BPs-20)(1) Deputy Chief Engineer (BPS-19)
(2) Superintending Engineer (Civil) & (Electrical/ Mechanical) (BPS-19)17 Years service in BPS-17 and above or 12 years service in BPS-18 in case of direct recruits in BPS-18 or 5 years service in BPS-19 in case of direct recruits in BPS-19
3. Deputy Chief Engineer (BPS-19) plus special pay of Rs. 100 p.m.Superintending engineer (Civil) & Electrical/Mechanical)
(BPS-19)14 Years service in BPS-17 and above or 9 years service in BPS-18 in case of direct recruits in BPS-18.
4. Superintending Engineer (E/M)
(BPS-19)Executive Engineer (Civil) (BPS-18)12 Years service in BPS-17 and above or 7 years service in BPS-18 in case of direct recruits in BPS-18
5. Superintending Engineer (E/M)
(BPS-19)Executive Engineer (E/M) (BPS-18)12 years service in BPS-17 and person initially appointed to BPS-17 must have passed the prescribed Departmental Examination.
6. Executive Engineer (Civil)
(BPS-18)Assistant Executive Engineer (Civil) (BPS- 17)5 years Service in BPS-17 and Person initially appointed to BPS-17 must have passed the prescribed Departmental Examination.
7. executive Engineer (E/M)
(BPS-18)Assistant Executive Engineer (E/M) (BPS- 17)5 years service in BPS-17 and person initially appointed to BPS-17 must have passed the prescribed Departmental Examination.
8. Assistant Executive Engineer (Civil) (BPS-17)Sub-Engineer (Civil)
(BPS-16)3 years Service in BPS-16.
9. Assistant Executive Engineer (E/M) (BPS-17)Sub-Engineer (E/M)
(BPS-16)-Do- The appellant Mian Irshadul Haque, Executive Engineer (E/M) challenged the vires of these rules through a representation made on 7-11-1984 on the ground that the alteration in the rules had adversely affected his chances of promotion. This representation was rejected on 20-3-1985. The order of rejection was conveyed to the Superintending Engineer, Central Civil Circle, PWD, Lahore.
This is in the following words:-- "I have the honour to enclose a copy of Works Division letter No,F.11(294)65-EH, dated 4-3-1985 on the subject cited above and to state that the recruitment rules are quite clear which provide separate cadres of Executive Engineer (Civil) and Executive Engineer (E/M) and their further line of promotion accordingly. He would, therefore, be considered for promotion to the post of Superintending Engineer (E/M) as and when a vacancy occurs. The Officer may be informed accordingly. Moreover, the Works Division, Islamabad has also observed that endorsement of representation direct to the Secretary, Establishment Division is contrary to the instructions contained in the Civil Servants (Appeal) Rules, 1977 and as such the officer may be asked to explain his conduct as well.
This issues with the approval of the Director-General."
The appellant then filed a Writ Petition No, 3705/85 in the Lahore High Court in October, 1985, which was disposed of on 27-1-1986 observing that as the matter related to the terms and conditions of the service of the appellant, the High Court could not entertain the petition in view of the bar placed by Article 212 of the Constitution of the Islamic Republic of Pakistan. The Court further observed that the proper forum to obtain remedy was the Service Tribunal. The appellant then made a second representation on 31-1-1986 in which he challenged the vires of SRO-897(I)/84, dated 11-10-1984 and also the promotion of Abdul Waheed Khan, respondent No, 2, who had in accordance with the aforesaid revised Rules, been promoted to the post of Superintending Engineer by notification dated 18-4-1985. The present appeal under section 4 of the Service Tribunals Act, 1973, was filed on 9-2-1986. The relief sought in the appeal is that Notification No,SRO- 897(1)/84, dated 11-10-1984 which has changed the channel of promotion to the post of Superintending Engineer be declared to be mala fide, illegal and ultra vires and that the appellant be promoted to the post of Superintending Engineer with effect from 18-4-1985, the date from which respondent No, 2 was promoted. The appellant also claims seniority accordingly.
2. The extracts from 1951 Rules and from the Notification dated 11-10-1984 as reproduced above, show that the difference, in so far as relevant to the instant case, in effect was that whereas under the 1951 Rules the promotions to the post of Superintending Engineers could be made from _ amongst the Executive Engineers (Civil) and Executive Engineers (E/M) on selection basis, under Rules notified on 11-10-1984, a departure was made to the extent that to the post of Superintending Engineer (Civil) only the Executive Engineers (Civil) could be promoted, while for promotion to the post of Superintending Engineer (E/M) only the Executive Engineers (E/M) could be considered. The appellant's case is that by providing separate channels of promotion for the Civil and Electrical Engineers, the chances of promotion of the appellant have been adversely affected for the reason that the posts of Executive Engineers (Civil) are far in excess of the posts of Executive Engineers (E/M) thus providing a larger scope of promotions to the Civil Engineers.
3. While the appeal was pending before the Service Tribunal, the appellant prayed for deletion of the name of the respondent No, 2 and also filed an amended appeal wherein the name of the said respondent was omitted. Respondent No, 2, however, opposed the amendment and a Bench of this Tribunal, by a short order dated 21-4-1987, left open the decision on the objection. We first propose to decide whether respondent No, 2 is or is not a necessary party. As already stated, in his original appeal, the appellant had claimed promotion with effect from 18-4-1985 which in effect is the same date from which the respondent No, 2 was promoted. In other words, the appellant claims promotion in place of respondent No,
2. Additionally if the revised Rules of 1984 arc struck down as illegal, then the rights of respondent No, 2 would obviously be affected because he might not be found due for promotion with effect from 18-4-1985. The question no longer remains for further orders because respondent No, 2 was allowed to contest the appeal throughout.
4. A preliminary objection has been raised by the respondents that the appeal is not within time.
We have already observed that the impugned notification was issued on 11-10-1984 and to contest it the appellant made a representation to the department on 7-11-1984. This was rejected on 4-3- 1985. The latest date by which the appellant could come to the Tribunal was 3-4-1985. The appellant's stand, however, is that the order of rejection was never received A by him. Even if it was so, then the appeal should have been filed within 120 days from 7-11-1984. The last date for filing the appeal in this manner was 7-3-1985 which falls only four days after the date of rejection of the departmental representation. The present appeal having been filed on 9-2-1986 is thus clearly barred by time.
5. The learned counsel for the appellant, however, contends that there is an application for condonation of delay under section 5 of the Limitation Act and besides that, the period spent in pursuing the writ petition before the High Court is also to be excluded because the approach to that forum was made in good faith. It is pertinent to note that the writ petition had been filed in October, 1985 when the last date for filing the appeal before the Tribunal had already expired on 7- 3-1985. The question of deducting the period spent in pursuing the remedy before the High Court, therefore, does not arise. So far as the application for condonation of delay under section 5 is concerned, the mainstay of the appellant is that on 31-1-1986 he filed a fresh representation which was not replied to and immediately thereafter without losing any time, he came to the Tribunal on 92-1986. It has been held in so many cases by this Tribunal and the Supreme Court itself that the filing of successive representations does not enlarge the time limit and that section 22 of the Civil Servants Act, 1973 envisages only one representation. That representation having been filed in October, 1985, the filing of fresh representation on 31-1-1986 does not give the appellant a fresh cause of action. In the circumstances, therefore, the appeal is held to be hopelessly barred by time and is liable to be dismissed as such.
6. Since the question involved in this appeal is of some importance, we propose to decide the stand taken by the appellant on merits as well. As already stated, the appellant has contended that the change in the rules had adversely affected the chances of his promotion which were available to him on joining the service and, therefore, the notification made in 1984 changing the rules is ultra vires. This stand, in our view, is legally incorrect. In the case of Central Board of Revenue v. Asad Ahmed Khan PLD 1960 (SC) Dacca 81, it was clearly annunciated that the rules altering the chances of promotion could be made by the Government as by doing so no vested right of a party is infringed.
7. It was then contended on behalf of the appellant that section 25(2) of the Civil Servants Act, 1973 saves all rules which are not inconsistent with the Act and that as such the Rules of 1951 being in the field, no deviation could be made therefrom. We find little substance in the claim that the rules which have been saved under section 25(2) ibid cannot be altered. In fact, the rules making power available under the Civil Servants Act also envisages the amendment or repeal of the earlier rules.
There being no legal guarantee against the change in the existing rules, the appellant cannot say that the rules of promotion cannot be altered. Such a stand would go counter to the provisions of section 21 of the General Clauses Act, 1897.
8. The next argument advanced by the learned counsel was that sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 gives power to the Ministry or Division concerned to lay down the method of appointment and the qualifications and other conditions applicable to a post and that it does not empower the Ministry or Division to alter the rules of promotion or seniority. We do not think there is any substance in this contention either inasmuch as the method of appointment, in our opinion, includes appointment by promotion. The Ministries and Divisions as such are competent to lay down qualifications and conditions not only for initial appointment but also for appointment by promotion.
9. It was also argued that notification of 11-10-1984 was issued without obtaining approval of the FPSC. It was brought to our notice that there was some correspondence amongst the Works Division, Establishment Division and the Federal Public Service Commission. We need not go into details of this discussion because the notification itself in para. 9 shows that the same was issued in consultation with the Establishment Division and FPSC.
10. Lastly, it was contended that sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 offends the rule against excessive delegation of legislative powers. The learned counsel submitted that section 25 of the Civil Servants Act, 1973 empowers the President to make the rules and that sub-rule (2) of rule 3 ibid which empowers the Ministry or Division concerned to lay down the method of appointment and the qualifications and other conditions applicable to a post is ultra vires the Act itself because an Authority to whom power to make rules is delegated cannot further delegate it. No doubt a delegated power cannot be further delegated.
Nevertheless this rule is subject to the exception that when the law itself provides for further delegation that delegation, if made, will be as valid as the delegation made by the law itself.
Section 25 of the Civil Servants Act clearly provides that not only the President but also any person authorised by the President in this behalf, can make rules necessary or expedient for carrying out the purposes of the Act. Sub-rule (2) of rule 3 ibid, therefore, cannot be held to be ultra vires for having been made by an authority to whom the power has not been delegated. The power was delegated validly by the President to the Ministry and Division concerned under the authority of S. 25(1) of the Civil Servants Act, 1973, which cannot on any basis be challenged.
11. For the aforesaid reasons we find no substance in the argument that the Notification No, SRO- 897(1)/84, dated 11-10-1984 is ultra vires of the provisions of the Civil Servants Act, 1973, or any other law for the time being in force or for that matter the promotion of respondent No, 2, Abdul Waheed Khan, under the authority of the said notification is bad in law. The appeal is dismissed as time- barred as well as on merits.
12. No order as to costs.
13. Parties to be informed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.