' SARDAR SAID MUHAMMAD KHAN, J.--This appeal has been directed against the order of the Service Tribunal dated 27-11-1988, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts giving rise to the present appeal are that the appellant and the respondents Nos.
2 to 5 were serving in the Collegiate Branch of Education Department of the Azad Jammu and Kashmir Government. They were inducted in service in various grades and were subsequently promoted as Lecturers and afterwards as Professors and Principals of the Intermediate Colleges. A seniority list was circulated in year 1977, in which the respondents were shown senior to the appellant, but the said list was not disputed. It may be observed that even now the appellant does not dispute the position that the respondents were senior to him as Professors and subsequently as Principals; the respondents were promoted as Professors in year 1972-73, whereas the appellant was promoted as Professor in year 1-9-1976 and similarly when the appellant was appointed as Principal Intermediate College on 26-2-1978, the respondents had already been promoted to the said posts. In year 1984 ten posts of Professors in Basic Pay Scale No, 19 were to be filled up by direct recruitment and by promotion in ratio 55 : 45, as was laid down in the relevant rules. The appellant who was junior to the respondents applied for his appointment against the quota reserved for direct recruitment, whereas the respondents were considered for promotion to Basic Pay Scale No, 19..However, the matter was not finalised by the Government and the same remained pending till 4-1-1987 when the orders of promotion of the respondents were issued with retrospective effect from 29-10-1984. The appellant, who was appointed by direct recruitment, was selected by the Public Service Commission on 23-2-1985 and was appointed against the said post on 16-4-1985.
The appellant made a representation to the Azad Jammu and Kashmir Government praying that his appointment should also be given retrospective effect from March 1984, the date on which the vacancies in Basic Pay Scale No, 19 were available. The grievance of the appellant was not redressed and consequently he filed an appeal before the Service Tribunal praying for the relief in terms that his appointment might be given retrospective effect from March, 1984 and he should be declared senior to the respondents. The Service Tribunal dismissed the appeal.
3. We have heard the arguments and gone through the file. It has been contended by Agha Ashiq Hussain, the learned counsel for the appellant, that the respondents have brought nothing on the record to show that respondents were approved by the Selection Board on 29-10-1984; they have agitated this point for the first time in the Supreme Court which is not permissible under rules. He has also contended that there is nothing on the record to show that the vacancies for promotion were in existence on the date from which the promotion of the respondents was given retrospective effect. He has also maintained that under rule 10 of the Azad Jammu and Kashmir Education Service Class I (Collegiate Branch) (Men's Section) Rules, 1973 (hereinafter shall be referred as Departmental Rules), the seniority in case of appointees by direct recruitment and by promotion is to be determined with reference to the date of their `continuous appointment' against the vacancies as envisaged in para 2 of sub-rule (2) of rule 10 of the Departmental Rules. The learned counsel contended that the phrase "to the date of continuous appointment against such vacancy" in the said rules implies the date on which a person assumes the charge of the post and actually functions and thus it does not cover a notional or ante-dated promotion. The learned counsel has also submitted that any relaxation in the Departmental Rules could be made only in writing after recording reasons, as has been stipulated under rule 13 of the Departmental Rules. But in the instant case no such relaxation has been made. He has further argued that although the Government is empowered to relax any rule or law under section 22 of the Civil Servants Act, 1976, yet any such relaxation should not be arbitrary and must be based on valid grounds. The learned counsel has referred to the cases reported as Raja Muhammad Iqbal and others v. The Additional Chief Secretary, Government of Punjab 1982 SCM R 971 and Government of N.-W.F.P. v. Muhammad Ajmal and others 1986 SCM R 2007 in support of his contention that retrospective effect to the promotion is not permissible under law. The facts of the case reported as Raja Muhammad Iqbal and others v. The Additional Chief Secretary, Government of Punjab 1982 SCM R 971, were that some NaibTehsildars were considered alongwith Tehsildars for bringing their names on the Select List 'A' in terms of rule 5 (5) of the West Pakistan Civil Servants (Executive Branch) Rules, 1964, for their appointment to the P.C.S. Their case was sent to the Public Service Commission and received its approval. The Tehsildars were appointed to the P.C.S. In July, 1973. In respect of the NaibTehsildars so approved there was a reconsideration of the policy of their promotion and recruitment and in the process their promotion was delayed by about 14 months. Thus, they were promoted in July 1974. In the meantime the Government had recruited 32 persons as direct recruits in the P.C.S. The NaibTehsildars, who were promoted, were shown junior to the direct recruits. Their case before the Tribunal was that they like the Tehsildars should have been appointed to the P.C.S. As and when the Public Service Commission approved of their being put on the Select List 'A' and the Tehsildars were appointed to the service. The delay in their appointment was not on account of any conduct on their part but on account of the failure of the Government to decide about the policy in the matter.
The Tribunal examined the rules applicable to the case of the petitioners and held that their appointment could not be taken back to a date earlier than their appointment and from that date the rules of seniority applicable justified their being placed below direct, recruits. Hence, the appeal was dismissed. It was held that the rules of seniority being not in dispute nor the date of actual appointment of the Naib-Tehsildars, the application of rules presents no problem. It was opined that the claim of the petitioners to have their appointments ante-dated to the time when the Tehsildars were appointed or when their names were approved by the Public Service Commission is based on no provision of law or rules applicable to their cases. Thus, in absence of any provision of law or rules governing the matter, it was held, they could not claim nor could the Service Tribunal was within its powers to ante-date their appointment for the purpose of seniority. Consequently, the petition for leave to appeal was dismissed.
' In Government of N.-W.F.P. v. Muhamamd Ajmal and others 1986 SCM R 2007, the Supreme Court refused to grant leave against the judgment of the Provincial Service Tribunal observing that as no violation of the rules was committed, the case was not fit for appeal because the ante-dated promotion of the petitioners was not based on any rule, but was merely based on administrative letter. As the facts of the case have not been recorded in the order of the Supreme Court, as to which were the rules applicable to the case of the petitioners in that case.
4. The learned counsel for the appellant has also referred to rule 24 of the K.S.R. And argued that seniority of the person who was subject to that rule was to be determined with reference to the date of his first appointment to such service, class, category or grade as the case may be. The learned counsel has also submitted that the authorities cited by the learned counsel for the respondents are irrelevant and have no bearing to the case in hand.
5. In reply it has been contended by Mr. Abdul Rashid Abbasi, Advocate, appearing on behalf of the respondents, that the case of the appellant was that his appointment should be given a retrospective effect as was done in case of the respondents. The appellant reiterated his plea again before the Service Tribunal, as is evident from Para. 8 (I) and from the relief clause contained in the memorandum of appeal filed before the Service Tribunal; but the appellant, after the dismissal of his appeal by the Service Tribunal, has come up with altogether a contradictory case in terms that the Government was not competent to give retrospective effect to the promotion of the respondents. The learned counsel has maintained that a party cannot be permitted to vary its case at the appellate stage. Thus, according to the learned counsel, the appellant was estoppel to contend that the respondents could not be legally promoted retrospectively. From 29-10-1984, the date on which their selection was made by the Selection Board. The learned counsel has also contended that retrospective effect could not be given to the order of appointment of the appellant because he was appointed by direct recruitment and not by promotion, as was done in case of the respondents whose appointment in Basic Pay Scale No, 19 was made by promotion. The learned counsel for the respondents has contended that in view of section 22 of the Civil Servants Act, 1976, read with rule 8 of the Rules known as The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, an appointment by promotion can be given retrospective effect but not an appointment by direct recruitment. His contention was that section 22 of the Civil Servants Act would not apply to a direct appointee because he could not be termed as a civil servant at the time of his appointment, whereas the same is fully applicable to an appointment to be made by promotion as was done in the case of the respondents. The learned counsel for the respondents has also cited the following authorities in support of his contention: ' In Muhammad Naseem and others v. Azra Feroz Bakht and others PLD 1968 SC 37, it was held that confirmation of probationer was discretion of the employer and new incumbent can only be made where a permanent post. Exists. It was further observed that the probationer has no right to be confirmed from the date of his original appointment. When the conditions are prescribed for confirmation an officer remains a probationer until he has' fulfilled those conditions and cannot be treated as a person substantively appointed to a permanent post. It was further observed that the rules, governing the conditions of service of persons employed, made by the competent authority and having all characteristics of statutory rules are effective as any other statutory provisions on the subject.
' In Ch. Kabir Ahmed and others v. The Government of the Punjab 1982 SCM R 978, it was contended that the Notification under section 25 of the Punjab Civil Servants Ordinance, 1974, was ultra vires of the Ordinance because the principle of seniority prescribed by the notification was in conflict with the principle prescribed by section 8 of the Ordinance. It was held that as the notification itself had been issued under section 25, which enabled the Government to make such rules as appeared to him to be necessary or expedient for carrying out the purpose of Ordinance, the seniority of the respondent would be governed by the Notification.
' In Government of N.-W.F.P. And others v. Buner Khan and others 1985 SCM R 1158, the petition for leave to appeal was converted into appeal and disposed of as such. The facts of the case were that seventy-five per cent of the posts in Grade 18 in the Provincial Education Department were to be filled in by promotion from among the Grade 17 Officers of that Department and 25 per cent by direct recruitment. However, no proper rotation of the vacancies for the purpose appears to have been maintained. The five persons were directly recruited. But no joint seniority list in Grade 18 was therefore notified, with the result that some of the direct recruits were promoted to Grade 19 without the promotees being considered for such promotion. The promotes represented that their promotion be given retrospective effect from a date earlier that of the direct recruits. But after failing to succeed, they preferred an appeal before the Service Tribunal. The Tribunal held that maintenance of separate seniority lists, one of the promotees and the other of the direct recruits, was not proper and that promotion of the promotees with immediate effect on 12-5-1984 was also not proper as they should have been promoted with effect from the date when the vacancies in their quota became available. The Tribunal further found that even on 30-12-1980 when the first three direct recruits were appointed, there were 12 vacancies, of which 9 could have been filled in by promotion with effect from that date. The Tribunal accordingly allowed the appeal and directed 'the Government to promote the appellants (promotees) to Grade 19 posts w,e,f, the dates the vacancies were available and thereafter a joint seniority list of the Officers directly recruited and those promoted be issued according to the rules'.
' In Syed Sultan Shah v. Government of Balochistan and another 1985 SCM R 1394, the concerned Government employee was serving as Tehsildar when he was subjected to disciplinary action taken against him and he was punished. He challenged his punishment in Civil Court and succeeded in quashment of order passed against him. Thereafter, he was restored to the office. His claim of promotion was also recognised retrospectively from 26-10-1968. However, it was maintained that he would not be entitled to the arrears of pay as a result of pro forma promotion under F.R.
17. On the interpretation of fundamental rule 17 his appeal was accepted that he was also entitled to his arrears of pay as a consequence of his pro forma promotion.
' In Islamic Republic of Pakistan v. Muhammad Zafar and others 1986 SCM R 898, the order of appointment of direct recruits was delayed. However, the delay in issuing order was explained by the Authority. The Tribunal failed to consider the relevant law governing the delay in such cases and upheld the contention of the civil servants who were appointed by direct recruitment and ante-dated their appointments from the date of their posts were advertised.
' On appeal to the Supreme Court the order of the Tribunal was set aside on the ground that the offer of appointment issued to the direct recruits contained the condition that the affective date for the purpose of seniority would be the date of their assumption of charge. Thus, after accepting the condition the concerned civil servants, who were appointed by direct recruitment had no right to claim an ante-date appointment.
' In Muhammad Arshad Saeed v. Pakistan and others 1986 SCM R 1953, the concerned civil servant belonged to Police service. He was pre-selected in 1969 and got admitted to the Government College Lahore for his graduation in pursuance of the policy adopted for recruitment to the police service of Pakistan formulated in the year 1968. Finally he was graduated and was selected by the Public Service Commission on 26-12-1972 and consequently started service in grade 17. Later on he was called upon to perform the duties in the higher Grade in N.P.S. No, 18 on 28-6-1976 in his own pay and grade and was regularly promoted to that grade on 27-12-1977, on completion of five years' service in Grade 17. A provisional seniority list of the Police Officers was circulated on 28-10- 1980, wherein the petitioner was shown at a lower position than he considered to be his due place.
He brought the matter before the Service Tribunal and subsequently to the Supreme Court. The Supreme Court of Pakistan held that in case of initial recruitment seniority or induction into service cannot be taken to a date earlier to actual selection or taking over the post. Thus, his appeal was dismissed.
' 5-A. The first point which needs to be resolved is as to whether in the case of direct recruitment, the appointment can be made ante-date. The learned counsel for the appellant has argued that the case of the appellant before the Service Tribunal was that he should be declared senior to the respondents after giving retrospective effect to his appointment from the date when the vacancy against which his appointment was made fell vacant. It has not been pressed by the learned counsel for the appellant that in case of a direct recruitment, a retrospective effect can be given to the appointment. The case of the appellant in this Court has been that the Government was not empowered to give retrospective effect to the promotion of the respondents. Even the Departmental Rules, which have been relied upon by the learned counsel for the appellant, stipulate that in case of direct recruitment the relevant date for determining the seniority would be the actual date of appointment of the person concerned. Even otherwise, it is settled law that in absence of any rule or law to the contrary the appointment by way of direct recruitment cannot be given retrospective effect. A reference may be made to the cases reported as Islamic Republic of Pakistan v. Muhammad Zafar and others 1986 SCMR 898 and Muhammad Arshad Saeed v.
Pakistan and others 1986 SCMR 1953, referred to above.
6. Now the sole point which needs to be resolved is as to whether the promotion of the respondents could be given retrospective effect and if so under what law. The learned counsel referred to section 22 of the Civil Servants Act, 1976 (hereinafter shall be called the Act) and rule 9 of the Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter shall be called as Civil Service-Rules) in support of his contention that a retrospective promotion is permissible under the aforesaid provisions of law. For the sake of convenience section 22 of the Act and rule 9 of the Civil Service Rules are reproduced: "22. Saving.--Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
' Rule 9 of the Civil Service Rules is as under:-- "9. (1) Appointments by promotions or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board.
(2) Promotion including pro forma promotion shall not be claimed as of right by any civil servant."
7. The question arises whether the aforesaid provisions of the Act and the Civil Service Rules would be applicable to the cases of the parties or their cases are to be governed by the Departmental Rules of 1973. It may be observed that under section 23 of the Civil Servants Act all law and rules etc. Which are not inconsistent with the provisions of the Act would be deemed to have been made under this Act. For the sake of convenience section 23 of the Act is reproduced as under:-- "23.--(1) The Government, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the puroses of this Act.
(2) Any rules, regulations, 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 /pct shall, in so far as such rules, regulations, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be made under this Act."
8. It is evident that in view of the above provisions, any law inconsistent with the provisions of Civil Servants Act would be inoperative. Thus, even if it is assumed for the sake of argument that a retrospective promotion is not permissible under the Departmental Rules that would be deemed to have been repealed by the operation of provisions contained in section 22 of the Act and the rules framed thereunder. The contention of the learned counsel for the appellant that expression " to the date of continuous appointment" appearing in rule 10 of the Departmental Rules would mean the date on which a promotee actually starts functioning against the relevant post or assumes the charge of the post as a result of promotion, is not supported by any authority. An identical expression also occurred in rule 8(2) of the Civil Service Rules, which is reproduced as under: "8. The Seniority inter se of persons appointed to post in the same grade in a Functional Unit shall be determined:--{{TABLE}}
(1) xxx xxx xxx
(a) xxx xxx xxx
(b) xxx xxx xxx
(2) The seniority of the persons appointed by initial recruitment to the grade vis-a-vis those appointed otherwise shall be determined with reference to the date of continuous appointment to the grade; ' Provided that if two dates are the same, the persons appointed otherwise shall rank senior to the persons appointed by initial recruitment: ' Provided further that inter se seniority of persons belonging to same category will not be altered."
9. It is obvious that the expression "continuous appointment" is used both in Civil Service Rules and in the Departmental Rules. The word "continuous" has not been defined either in the Departmental Rules or in the Civil Service Rules. The dictionary meanings of word "continuous" are 'without any break'. Thus, we cannot subscribe to the view that the date of "continuous appointment" appearing in the aforesaid rules would be the date on which the relevant civil servant actually assumes the charge of the post to which he is promoted or appointed. The aforesaid expression has been used in altogether different context. It means that appointment by promotion must have been continuous and shall be unbroken. For instance if a civil servant is demoted to his original grade or in case of appointment by transfer, he ceases to enjoy the higher grade, his previous date of promotion shall not be considered for the purpose of seniority. However, the date of continuous appointment, whether notional or otherwise, is relevant factor for fixing the seniority. We are supported in our view by case reported as Khan Zia-ud-Din Khan v. I.G.P. West Pakistan, Lahore and 3 others 1971 PLC 47 (C.S.T.), in which it was held as under:- "When rule 9(1)(b) provides a rule of seniority with reference to the date of 'continuous appointment', the question, which must be considered is whether the date need not be confined to the date of actual appointment. It may well include a supposed or presumptive date of appointment or in very exceptional cases a date even prior to that from which a civil servant has functioned in the high rank. We are not inclined to rigidly confine the date of appointment to actual dates of functioning in a grade alone as date of continuous appointment. We are inclined to interpret those words in the rule in their wider meaning so as to include the dates of appointment as notified by the appointing authority and not necessarily the actual date of promotion to a higher grade. It may be the actual date or it may be an assumed date, which may presumptively be fixed to the discretion of the Government with a view to restore seniority or to avoid the causing of hardship or injustice to a civil servant. Thus we are inclined to hold as valid the dates of appointment presumptively fixed with retrospective effect in the case of the two respondents and see no invalidity in them. Even if our interpretation be not correct, we consider that this was a fit case for the Government to exercise its power or relaxation under rule 12, and to make appropriate orders under rule 14 of the 1962 Rules in order to safeguard the rights of the two respondents, which were threatened by reason of ignoring the advice of the Public Service Commission, and to avoid a hardship and injustice, which may well seriously affect the official career of the two respondents."
10. It may be observed that sub-rule (2) of rule 9 envisages that pro forma promotion cannot be claimed as of right by a civil servant. It implies that a pro forma or notional promotion is not foreign to the Civil Servants Act or the Rules. Section 22 of the Civil Servants Act read with rule 9 empowers the Government to give retrospective effect to a promotion if the circumstances of the case so warrant. So far as the Departmental rules are concerned, even in these rules there is no provision prohibiting a notional promotion. As has already been pointed out in view of section 22 of the Civil Servants Act and Rule 9 of Civil Service Rules any inconsistent provision of the Departmental Rules would have no legal effect.
11. In case reported as Ch. Kabir Ahmed etc. v. The Government of the Punjab etc. 1982 SCMR 978 as referred to above, it was held that the principle of seniority prescribed by the Notification cannot he said to be ultra vires of the Ordinance because under section 25 of the said Ordinance the Government was empowered to make rules which were necessary or expedient for carrying out the purpose of the Ordinance. Thus, in the instant case rule 13 of the Departmental Rules of 1973 which requires to record reasons for relaxing any of the rules would have no application in view of the provisions contained in section 23 of the Civil Servants Act, 1976. Rule 13 of the Departmental Rules also cannot override the provisions contained in section 22 of the Civil Servants Act. Thus, the contentions of the learned counsel for the appellant that the Government was obliged to record reasons in writing for giving retrospective effect to the promotion of the respondent or it was not competent to ante-date the promotion of the respondents are not tenable and are hereby repelled.
12. There is no dispute that the respondents were senior to the appellant in the lower grades and the vacancies were in existence against the departmental quota on the date from which the promotion of the respondents was given retrospective effect. It has not been the case of the appellant before the Service Tribunal that the vacancies against the quota reserved for departmental promotions were not available on the date from which the respondents have been given retrospective promotion. Even otherwise, for our satisfaction, we sent for the relevant record from the Service and General Administration Department which shows that vacancies in B.P.S. No, 19 which were to be filled by departmental promotion had been in existence since 29-10-1984.
Therefore, there is no force in the contention of the learned counsel for the appellant that vacancies against which the respondents were promoted were not in existence in year 1984.
However, the record shows that the selection of the respondents for promotion was made by the Board on 14-10-1986, but this would not affect the merits of the impugned order.
13. In case reported as Raja Muhammad Iqbal and others v. The Additional Chief Secretary, Government of Pakistan 1982 SCMR 971 it was held that there were no provisions to claim ante- date promotion under any law. Thus, the petition for leave to appeal was dismissed. The perusal of the aforesaid authority does not show the facts of the case and makes no reference to the rules nor it shows that the petitioners in that case were governed by the provisions identical to those contained in the Civil Servants Act, 1976, and the rules framed thereunder. Besides, in case reported as Government of N.-W.F.P. And others v. Buner Khan and others 1985 SCMR 1158, referred to earlier, the Supreme Court while converting the petition for leave to appeal into appeal confirmed the view of the Service Tribunal that the appellants/promotees should have been promoted from the date when the vacancies in their quota had come into existence. We are in respectful agreement with views expressed in the aforesaid authority and hold that the Government is fully competent to give retrospective effect to an appointment by promotion.
' In the light of what has been stated above finding no force in this appeal it is dismissed. In the circumstances of the case no order is made as to the costs.