1. SHAFIUR RAHMAN, J.--- Leave to appeal was granted in these two appeals to examine whether Rule 9 of the Secretariat Group Service Rules/Para. 10 of Establishment Division Office Memorandum No,2/2/75-ARC, dated 21st February, 1975, read with Presidential Order/Office Memo. No,16/4/79-AV, dated 8th August, 1979, had not the effect of entitling the two appellants who had rendered Army service as Brigadier, to count such service for the purposes of seniority as Joint Secretary in the Federal Government after their appointment as Joint Secretaries.
2. 2.Brigadier Sher Ali Baz, the appellant in Civil Appeal No,54 of 1987 was commissioned in the Army in the year 1948 and rose to the rank of Brigadier on 7-8-1970. He was seconded to the Federal Secretariat as a Joint Secretary on 1-9-1975. He appeared at the lateral entry examination of Joint Secretary, qualified it and was appointed so on 9-8-1976. His seniority was, however, antedated to 30-7-1975 when a person junior to him in the lateral entry examination had been appointed.
3. 3.Brigadier Abdur Rashid, the appellant in the other appeal (Civil Appeal No,55 of 1987) was commissioned in the Army in 1950. He rose to the rank of Brigadier on 2-10-1973 and took over on secondment as Joint Secretary on 7-10-1978. He was absorbed as Joint Secretary in the Secretariat Group on 9-10-1981 but was given his seniority from 7-10-1978 when he had come on secondment.
4. The two appellants felt that they had a case for claiming their seniority and service rendered as Brigadier in the Army for the purposes of seniority as Joint Secretary when Cabinet Secretariat (Establishment Division) issued the Presidential Order which is as hereunder:-"Government of Pakistan Cabinet Secretariat (Establishment Division)
5. No.16/79-A V. Rawalpindi, the 8th August, 1979.
6. The President has been pleased to approve the following `principle of equivalence' between the rank held in the Defence Services with appointments in National Pay Scales: Defence Service Rank Major-General and equivalent Grade-21 or 22 at the discretion of the Government.
7. Brigadier and equivalent. Grade-20 Colonel (with 18 to 20 years commissioned service) and equivalent.Grade-19 Major and equivalent Grade-18 Captain and equivalent and Lt. and 2/Lt. and equivalent Grade-17 (Sd.)
8. (Shahid Humayun), Section Officer. Tele: 67548 All Ministries/Divisions, Islamabad/Rawalpindi/Karachi."
9. 5.When the Seniority List issued on 17-8-1981, they found that their earlier service as Brigadier was not reckoned. Brigadier Sher Ali Baz represented against it in time. He received the rejection of his representation on 26-4-1982 and filed the appeal before the Tribunal on 25-4-1982. His appeal suffered from no defect of laches or limitation.
10. 6.Brigadier Abdur Rashid did not approach the Tribunal after availing of the remedy of representation before the departmental authorities in time but when others whom he considered junior were promoted on the basis of the seniority list of 17-8-1981 without his Army service being taken into account for the purposes of promotion he again represented and approached the Tribunal. The Tribunal found his appeal to be time-barred but considered that as the position of seniority was somewhat uncertain and an identical matter was directly in issue in the other appeal, it condoned the delay and proceeded to dispose of both the appeals on merits.
11. 7.The decision of the Tribunal, though each Member of the Tribunal has written a separate order, was unanimous that the appellants could not claim the benefit of service rendered as Brigadier.
12. 8.Mr. Abdul Hakeem Khan, Senior Advocate, the learned counsel for the appellants has placed reliance on the fact that the rank of a Brigadier in the matter of remuneration and perquisites happened to be higher to that of a Joint Secretary to the Federal Government though the President by a specific Order equating it to the Joint Secretary rank had made the matters beyond challenge and there was a precedent of the Senior Administrative Officers being given their earlier seniority on appointment as Joint Secretary at least from the date that the National Pay Scales were introduced, i,e, 1-3-1972.
13. 9.Ch. Ijaz Ahmed, the learned Deputy Attorney-General for Pakistan has supported the judgment of the Tribunal and has further contended that the two appeals before it were incompetent; that of Brigadier Abdur Rashid being barred by time as held by the Tribunal itself and that of the other appellant (Brigadier Sher Ali Baz) being premature as he filed it the very next day to the rejection of the representation against the seniority list instead of waiting for the requisite period.
14. 10.The Secretariat Group to which the appellants belonged was constituted by an Office Memorandum relating to Administrative Reforms on 21st of February, 1975. Paragraphs 4 and 10 of these instructions are reproduced hereunder as they are relevant:--
(4) Joint Secretary.-- Appointment to the post of Joint Secretary will be made as under:--
(i) By selection on the basis of examination and interview etc., held periodically for lateral entry to senior posts in the Federal Secretariat.
(ii) By horizontal movement of such Grade-20 officers of the various occupational groups as are recommended by Ministries/Divisions, Departments, Provincial Governments etc. And are found fit by the Central Selection Board."
(10) Joint Secretary.-- The seniority of Joint Secretary which is a post in Grade-20 will be determined from the date of his continuous regular officiation in Grade-20."
11. This Office Memorandum was substituted by another Office Memorandum dated 12th of April; 1976 and the corresponding Paragraphs therein are Paras/Rules 4 and 9 reproduced as hereunder:-- "4. Joint Secretary.-- Appointment to the post of Joint Secretary will be made as under:--
(i) By promotion of officers in the grade of Deputy Secretary on the recommendations of the Central Selection Board.
(ii) By horizontal movement of such Grade-20 officers of the various occupational groups as are recommended by the Ministries/Divisions, Departments, Provincial Governments etc. And are found fit by the Central Selection Board.
(iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc., as may be prescribed."
(9) Joint Secretary.-- T he seniority of a Joint Secretary which is a post in Grade-20 will be determined from the date of his continuous regular officiating in Grade-20."
12. On 4th of October, 1977, were issued the principles of seniority of officers who had been inducted by the lateral entry into the Cadre and these are in the following terms (page 231 of Estacode - 1989 Edition, Serial No,161):-- "The fundamental rules regarding the seniority of officers inducted by lateral entry into civil cadres are based on the following considerations:--
(i) the date of induction of the officer;
(ii) the grade in which he is initially inducted;
(iii) his seniority in that particular grade in which he is inducted, is fixed with reference to his date of induction; and
(iv) his seniority in his original service to which he belonged becomes irrelevant after he has been inducted into a civil cadre with effect from a particular date.
(2) These are basic principles of induction of lateral entrants into civil cadres."
15. ' The rule of decision with regard to seniority is formally expressed in Rule 9 of the Secretariat Group Rules and it provides for continuous regular officiation in Grade-20. The word 'Grade' has been defined in the Civil Servants (Change of Nomenclature of Services and Abolition of Classes) Rules, 1973 in the following words:-- "'Grade' means a National Scale of Pay in which a post or group of posts is placed;" `Services' has been defined in the same Rules as 'civil services of the Federation'. Not only the Act under which these Rules were framed but the Rules themselves C were confined in their operation to the civil services. There was no comparison, no equation and no reference to any 'grade', 'scale' or 'rank' outside the civil services. Hence, the rank of Brigadier was totally alien to the Rules in which the word 'grade' is defined and also in the Act under which those Rules were framed.
16. ' The National Scales of pay were also, as appears from Serial No,2 at page 403 of Estacode 1983 edition, available only to civil servants as is indicated I from the following recital:-- "The President has been pleased to sanction the Scheme of National Scales of Pay, Allowances and other Fringe benefits for gazetted civil employees (other than teaching personnel) of the Federal Government, paid directly from the Civil Estimates or from the Defence Estimates as detailed below "
17. 14.It follows, therefore, that continuous regular officiation in Grade-20 would have application to no other scale of pay, remuneration, rank or other financial benefits except those that were made available to the civil servants and on that view of the matter, the rank of Brigadier would be wholly irrelevant for determining the seniority of the appellants.
15. Much strength is sought to be derived by the appellants from the equivalence formula of 8th August, 1979. It does not speak of the purpose for which this equivalence formula has been prescribed. It makes no mention of seniority or addition of the rank service in the comparable appropriate seniority in National Scales of Pay. It speaks of principles of equivalence between the rank held in Defence Services with the appointment in National Scales of Pay. This has not been interpreted even by the Department itself as entitling the persons to rank seniority on their absorption, appointment or induction into the appropriate grade in National Scales of Pay. It has not that effect in view of the formal rules framed on the subject and reference to which had been made and which provide so differently. It cannot be of avail for claiming benefit of rank seniority in the Army, Navy or the Air Force in civil employment.
18. 16.The appellants consider the principles of equivalence to be declaratory of the law of the land, so having retrospective effect. They consider it to be an eminently just and equitable dispensation by the President, well within his powers and obligations under section 23 of the Civil Servants Act.
19. Seniority being not a vested right (section 8 of the Civil Servants Act), such a dispensation had not the effect, according to them, of prejudicially affecting anyone else already in the service in or in competition for seniority.
20. 17.The dispensation invoked by the appellants is general. It deals with all the commissioned ranks of the army. It deals with all the Gazetted ranks of the Civil Service. It speaks of no object and purpose. It by itself achieves nothing. It has neither a beginning nor an end. There is a very well entrenched principle of interpretation of statutes and statutory instruments and it is Generalia specialibus non derogant meaning 'General words do not derogate from special provisions, or, 'special provisions will control general provisions'. This principle of interpretation found recognition in Fitzgerald v. Champneys (2J & H 31, 54 quoted with approval in Re Smith's Estate, Clements v.
21. Ward, 35 Ch D 389; Marbury v. Plowman, 16 CLR 468, 473 by Wood, V.C. In the following words:-- "In passing the special Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated."
22. 18.In the circumstances, such a general dispensation as has been invoked by the appellants cannot have the effect of displacing to any extent the special provisions, the specific and formal provisions already in existence with regard to the seniority of those entering laterally as Joint Secretary. The position of officers of Senior Administrative Officers Grade was altogether different.
23. They were in the Civil Service. They were acting as Joint Secretaries and the change in nomenclature made no difference to them nor did the encadrization of Joint Secretaries.
24. 19.The appeals have no merit and are dismissed with no order as to costs.