SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine whether exercise of the power by A the Governor under Rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 could be retrospective in a manner to affect' the seniority rights of the appellants.
2. The four appellants were recruited directly in 1974 through the Public Service Commission as Assistant Engineers in the service of Engineers, Buildings and Roads (Class-I), governed by the Rules framed in 1967. The Respondent No,2 was recruited in the year 1975 by the same process and according to the rules and the law applicable, being an inductee of a subsequent selection was to rank junior to the appellants. The respondent No,2 had previous to induction, as a direct recruit, as Assistant Engineer, rendered service in the Army Corp of Engineers and was on duty on Karakaram Highway Project. On the 18th of July, 1979, the following Order was issued by the Secretary of the Communications and Works Department:-- "The Governor of the Punjab is pleased to allow Capt.(Retd.) Abdul Qayyum, Assistant Engineer, presently posted as S.D.O., Highway Chiniot to count Army Service (21-10-1969 to 26-2-1975) for the purposes of seniority in his Civil Appointment as Assistant Engineer, in relaxation of rule 8 of the Punjab Civil Servants (Appointments and Conditions of Services) Rules, 1974. Consequently, the seniority position of this officer is changed from serial No,125 of the Provisional seniority list, circulated vide No,SDO(C&W)4-2/77, dated 15-7-1978, to a place between M/s. Muhammad Farooq Chohan (serial No,2) and Mr. Muhammad Ashraf Dogar (serial No,3) in the said list.
' The Governor of the Punjab is further pleased to relax the condition of 5 years' service in the Department as Assistant Engineer, for promotion to the post of Executive Engineer, prescribed under the West Pakistan service of Civil Engineers (Class-I) Rules, 1967, by considering his service rendered in the Army as service in the Department.
' The Governor of the Punjab is also pleased to allow the officer the benefit of his army service towards pay and pension."
' This Order was preceded by a number of representations filed by the respondent No,2, in respect of the benefit of his past service and the same was examined by the Services and General Administration Department and the Department to which the contesting parties belonged. The record of the Department shows that the following noting had preceded the issuance of the formal Order reproduced above:-- "The amendment of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 so as to count army service for purposes of seniority, as a general rule, would take considerable time, as many agencies would be involved in this process. Moreover, any amendment would have prospective effect and not retrospective effect so as to give benefit to Mr. Abdul Qayyum, Assistant Engineer, the applicant.
' I would, therefore, suggest that in the present case the appointment of Mr. Abdul Qayyum may be regularised in relaxation of the service rules so as to give him benefit of his army service. At the same time the Communications and Works Department may make a provision (in accordance with the prescribed procedure) to give benefit of army service to Assistant Engineers on the pattern followed by the Health Deptt. In the case of Medical Officers.
(Sd.)
12-1979 SECRETARY (SERVICES)
' ADVISER TO MLA for C&W Deptt.
' May Mr. Abdul Qayyum S.D.O. Be given the benefit to count his Army Service for purposes of seniority, pay & pension.
(Sd.) Adviser ' Secretary C.S./ Governor/M.L.A.
(Sd.)
15-2-1979 ' Governor/M.LA. I agree.
(Sd.)
M.LA./Governor 15-2-1979".
3. The appellants challenged this Order in so far as it granted seniority to the respondent No,2 over the appellants and many others against the established law, in the Service Tribunal. The Tribunal after reproducing the facts recorded the following order and dismissed the appeal:-- "We have seen the record. There is an order by the competent authority i,e, M.LA./Governor assigning Capt. Abdul Qayyum due seniority by giving him benefits of past service in relaxation of Rules. The order is a valid one. It cannot be assailed and the appeal is, therefore, dismissed in limine."
4. Mr. K.MA. Samdani, Advocate, the learned counsel for the appellants contended that unlike the other Service Laws like the Civil Servants Act of the Federation, the N.-W.F.P., the Sindh and the Balochistan, Section 7 of the Punjab Civil Servants Act while dealing with seniority does not expressly say that the seniority shall not be vested right. On that account, the Punjab Civil Servants have unique distinction of treating seniority as their vested right as held by this Court in Bashir Ahmad Khan v. Mahmud Ali Khan Chowdhury and others PLD 1960 SC 195. Further it was contended that the respondent No,2 had no entitlement under any of the existing laws independently of this power of relaxation exercised in his favour, to claim the benefit which he has been given. The relaxation power contained in the Service Rules, in the Appointment and Promotion Rules and the Punjab Civil Servants Act, have all a limitation which must be read in them that they are to be exercised equitably, fairly and justly; that the exercise should not destroy any of the vested rights of others and those affected must be granted a hearing. In order to indicate the limitations on such a discretionary power the learned counsel has relied on the Montgomery Flour and General Mills Ltd. Montgomery v. The Director, Food Purchases, West Pakistan and others PLD 1957 Lah. 914 and Council of Civil Service Unions and others v. Minister for the Civil Service 1985 Appeal Cases 374.
5. Mr. D.M. Awan, Advocate, the learned counsel for the respondent No,2 on the other hand pointed out to the meritorious services rendered by the respondent No,2 in the construction of Karakaram Highway Project which had earned the country recognition of the world, how he was not allowed to leave the commission in the Corp of Engineers for the purpose of taking up examinations for recruitment to the Punjab Service. He has also referred to his academic record and seniority to establish that equitably, justly and fairly, the respondent No,2 was entitled to the benefit conferred on him and what has been done was in proper exercise of powers.
6. After the close of the arguments and while the judgment was reserved, an application was filed by the contesting respondent claiming a rehearing of the matter. The grounds taken up therein are three. Firstly, that certain documents were filed for the first time at the hearing of the appeal of which the respondent No,2 had no notice. Secondly, it was specified that a number of objections involving the same questions have already been admitted and are awaiting disposal. Thirdly, it was contended that in a matter different and also in a position different from one enjoyed now by Mr. K.M.A. Samdani, he had given an opinion to the Federal Government as its Secretary that the relaxation power can be exercised in the manner in which it was done by the Governor in the case of the respondent No,2.
7. We do not consider it necessary to reopen the case for rehearing because there is no additional document filed except that was before the Service Tribunal which the Service Tribunal claims to have seen before dismissing the appeal. Besides, the documents are of no particular importance in the case. It is the ambit of the power conferred on the Governor to relax the rules in individ,ial cases which is in issue and it is not dependent much on the facts. As regards the cases in which leave to appeal has been granted, the application itself shows that it relates to interpretation of section 23 of the Federal Civil Servants Act where power of the President is involved. The distinguishing feature of the Federal and other Provincial Civil Servants Acts has been indicated and that distinguishing feature makes those cases irrelevant for the determination of the question raised herein, For the same reason opinion given by the learned counsel for the appellants (Mr. K.M.A. Samdani) in a capacity different from the one in which he argued would also appear to be irrelevant because it related to the Federal Law and not to the Punjab Civil Servants Act.
8. Under the Constitution of 1956, the question of seniority in service came up for examination before this Court in two cases. In the case of Bashir Ahmad Khan PLD 1960 SC 195, the following observations were made with regard to seniority:- "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."
' As regards the efficacy of Rules governing seniority, the following law was laid down:-- "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 the 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."
' In the other case, Pakistan through the Secretary, Ministry of Finance, Rawalpindi v. A.P. Hassumani and another PLD 1962 SC 409, the following law was laid down with regard to the established service cadres:-- "Once a Service is constituted by integration and encadrement, the rights of those within the service begin to take shape as against persons who are not within the Service, and the rights of the members of a Service inter se also assume a definite character, by the act of the Government in constituting the Service."
9. In this background, when the Constitution of 1962 came to be enforced, seniority was not one of the conditions specified in Articles 174 to 179 of that Constitution and it was left to the Rules to regulate it and Article 98(3)(b) placed a bar on the High Court to the making of an order in writ jurisdiction with regard to term or condition not specified in the Constitution. In 1969, Government Servants Conditions of Service (Relaxation) Order, 1969 (President's Order No,X of 1969) was enforced and it provided as hereunder:- "In exercise of the powers conferred by Article 8 of the Provisional Constitution Order and of all other powers" enabling him in that behalf, the President is pleased to make the following Order:--
1. (1) This Order may be called the Government Servants Conditions of Service (Relaxation) Order, 1969.
(2) It shall come into force at once.
2. Notwithstanding anything contained in any rules regulating the terms and conditions of service of a person in the service of Pakistan, the President or, as the case may be, the Governor, may, if he is satisfied that the strict application of any such rule causes undue hardship in any case, by order, dispense with or relax the requirements of such rule, to such extent and subject to such conditions as he may deem fit, for ensuring just and equitable treatment to the person concerned, while protecting to the maximum extent possible, the rights of other persons who may be affected by such order."
10. Clause (1) of Article 270 of the Constitution of 1973 provided as hereunder:-- "Parliament may by law made in the manner prescribed for legislation for a matter in Part I of the Federal Legislative List validate all Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders and other laws made between the twenty-fifth day of March, one thousand nine hundred and sixty nine, and the nineteenth day of December, one thousand nine hundred and seventy-one (both days inclusive)."
' The President's Order No,X of 1969 enforced on 19-11-1969 was not validated within the period of two years and as such ceased to be law of the land.
11. Under Articles 240 and 241 of the Constitution of 1973, the Act of the Parliament and of the Provincial Assemblies was to determine the terms and conditions of the civil servants appointed by the President or the Governor, as the case may be. When the Civil Servants Acts came to be enforced in 1973 and 1974, the following provisions were made with regard to seniority:- (i)Federal Civil Servants of 1973 : "8. Seniority.--(1) For proper administration of a service, cadre or post, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to the other civil servants belonging to the same service or cadre whether serving in the same department or office or not, as may be prescribed."
(ii) North-West Frontier Province Civil Servants Act 19731XVIII of 1973): "8. Seniority.--(1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be.
(2) Subject to provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or grade, whether serving in the same department or office."
(iii) Sindh Civil Servants Act, 1973 (XIV of 1973): "8. Seniority.--(1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or grade, whether serving in the same department or office or not, as may be prescribed."
(iv) Balochistan Civil Servants Act, 1974 (IX of 1974): "8. Seniority.--(1) For proper administration of a service, cadre or post the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be.
(2) Subject to the provisions of subsection (1) the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or cadre whether serving in the same department or office or not, as may be prescribed."
(v) Punjab Civil Servants Act, 1974 (VIII of 1974): "7. Seniority.--(1) Seniority on initial appointment to a service, cadre or post shall be determined in the prescribed manner.
(2) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: ' Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post.
(3) For proper administration of service or cadre, the appointing authority shall from time to time cause a seniority list of the members of such service or cadre to be prepared."
(4) Subject to the provisions of subsection (3) the seniority of a civil servant in relation to other civil servants belonging to the same service or cadre, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed."
12. The two features at once emerge from this comparative study of the law governing seniority.
The first is that the Punjab Civil Servants Act did not expressly say that seniority shall not be a vested right though all other laws said so expressly. The second is that the power of making Rules of Seniority subordinated the right of seniority. In the Punjab, there was no such subordination of the right of seniority to the Rules prescribed for determining seniority. The obvious conclusion is that in the Punjab seniority continued to be a vested right of a civil servant, elsewhere it did not. The Rules had to recognize it. As regards the power of relaxing the Rules, no such comparative study need be undertaken. Section 22 of the Punjab Civil Servants Act prescribes as hereunder:-- "Nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor 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, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
' Rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, after its amendment, provides as hereunder: "Government may, for special reasons to be recorded in writing, relax any of the rules in any individual case of hardship, to the extent prescribed by Government."
' Finally, in the Service Rules/West Pakistan Service of Civil Engineers (Buildings and Roads) (Class- I) Rules, 1967 itself, under which the recruitment of both the contesting parties took place provided 'relaxation' under Rule 18, in the following words:-- "18. Relaxation.- Any of these rules may, for reasons to be recorded in writing, be relaxed in individual cases, if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned: ' Provided that where such relaxation involves a question on which consultation with the Commission is mandatory, except in the case of relaxation of academic qualifications prescribed for promotion to the Service from the West Pakistan Service of Civil Engineers (Buildings and Roads)
(Class-II), the Commission shall be consulted before the relaxation is made."
' Rule 15(1)(a) of Service Rules of 1967 governed seniority of the parties. It read as hereunder:- "15. Seniority,- (1) The inter se seniority of the members of the Service in the various grades thereof shall be determined.--
(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission; provided that persons selected for the Service in an earlier selection shall rank senior to the persons selected in a later selection;"
' The Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, framed under the Punjab Civil Servants Act, 1974, also provided in Rule 8(1)(a) as hereunder:-- "8.(1) The seniority inter se of persons appointed to posts in the same grade in Functional Unit shall be determined:--
(a) In the case of persons appointed by initial recruitment in accordance with the order of merit, assigned by the selecting authority provided that persons selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection:"
13. The only question that remains to be examined is whether the power possessed by the Governor under Section 22 of the Punjab Civil Servants Act, to which the provisions in the Rules on the same subject are subordinate, justify the conferment of seniority retrospectively in a manner to violate the provision of Rule 8(1)(a) of the Appointment Rules and 15(1)(a) of the Service Rules of 1967 in a manner to prejudicially and adversely affect the vested right of the appellants and many others.
The dispensation under section 22 of the Punjab Civil Servants Act is individual and is limited and controlled by a proviso which establishes the supremacy of the Act and the Rules. The relaxation can be beneficial to the civil servant without being prejudicial to anyone else even to the civil servant who is granted relaxation or exemption. On that principle the impugned Order of the Governor is ultra vires section 22 of the Punjab Civil Servants Act in so far as it grants the respondent No,2, seniority for the period 21-10-1969 to 26-2-1975 and refixes the seniority accordingly. The allowance to an Officer the benefit of his Army service towards pay and pension and relaxation of five years service in the Department as Assistant Engineer for promotion to the post of Executive Engineer do not by themselves prejudicially affect anyone, and are therefore, not in violation of the law but in relaxation of it. Therefore, they are declared to that extent to be valid and proper.
14. The appeal is, therefore, allowed. The judgment of the Service Tribunal is set aside and the Service appeal filed by the appellants is allowed partly to the extent that the Order passed by the Governor conferring seniority on the respondent No,2 by giving him benefit of service rendered from 21-10-1969 to 26-2-1975 in the Army is declared to be ultra vires Section 22 of the Punjab Civil Servants Act and of no legal effect. As regards the rest of the exercise of relaxation power, the appeal in respect of it is dismissed. The parties are left to bear their own costs.
' RUSTAM S. SIDHWA, J.---I have read the judgment of my learned senior brother and agree with his views and the order proposed to be made. However, I would like to add a few observations of my own.
' The main question that arises in this appeal is whether the Governor of the Punjab, acting under section 22 of the Punjab Civil Servants Act, 1974, was competent to order respondent No,2's Army service from 21-10-1969 to 28-2-1975 to be counted for the purpose of seniority in his appointment as Assistant Engineer in the C&W. Department, to fix his seniority at serial No,2 from his previous position at serial No,124, over the heads of as many as 122 officers, including the appellants, to relax the condition of 5 years service in the department as Assistant Engineer for promotion of the said respondent No,2 to the post of Executive Engineer prescribed under the West Pakistan Service of Civil Engineers (B&R) (Class-I) Service Rules, 1967, and to also allow him the benefit of his Army Service towards pay and pension.
2. It is an admitted position that the appellants were directly recruited as Assistant Engineers through the Punjab Public Service Commission in 1974 and they belong to the 1974 batch. The recruitment was made in accordance with the provisions of West Pakistan Service of Engineers (B&R) (Class-I) Service Rules, 1967. Rule 8 of the said Rules provides that inter se seniority of members of the Service in the various grades is determined in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission, and that persons selected in an earlier selection rank senior to those selected in a later selection. It may be added here that the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, also came into effect on 24-8-1974, rule 8 of which provides the same protection as rule 8 of the 1967 Rules. It is also conceded that Captain Abdul Qayyum, respondent No,2, was directly recruited as Assistant Engineer through the Punjab Public Service Commission in 1975. He was assigned order of merit in the said 1975 batch. Respondent No,2 and other members of the 1975 batch joined service on 2-6-1975. Respondent No,2 is not a transferee from the Army to the Provincial Service of Engineers. He was also not seconded to the Provincial Service of Engineers. His case is not that of transfer or secondment, but of being laid off from the Army and being directly recruited into service in the 1975 batch. Under section 7 of the Punjab Civil Servants Act, 1974, the seniority of persons initially appointed to a Service is determined in the manner prescribed i,e, under the rules. Section 23 of the 1974 Act permits existing rules already made or issued by a competent authority and in force before the coming into force of the Act to be deemed to be rules made under the Act, in so far as they are not inconsistent with the provisions of the Act. Rule 8 of the West Pakistan Service of Engineers (B&R) (Class I) Rules, 1967, being neither inconsistent with the 1974 Act nor rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, inter se seniority of persons recruited in the 1974 batch would rest in accordance with the order of merit assigned by the Commission and persons selected in the 1974 batch would rank senior to persons, including respondent No,2, selected in the 1975 batch.
3. By virtue of respondent No,2's meritorious services in connection with the construction of Karakoram Highway, the Governor of the Punjab, by his order dated 18-7-1979, granted a number of benefits to respondent No,2, as stated in para 1 above. The appellants do not challenge the grant to respondent No,2 of his Army service towards pay and pension, because the grant of such monetary benefits does not affect them, but they challenge the counting of his Army Service from 21-10-1969 to 28-2-1975 for the purpose of seniority in his civil appointment as Assistant Engineer, in relaxation of rule 8 of the Punjab Civil Service (Appointment and Conditions of Service) Rules, 1974, the grant of seniority from his placement at serial No,125 of the Provisional Seniority List dated 15-7- 1978 to a place immediately below Muhammad Farooq Chauhan at serial No,2 and the relaxation of five year's service in the Department as Assistant Engineer for promotion to the post of Executive Engineer. The appellants urge that respondent No,2's meritorious services in the construction of the Karakoram Highway could have been rewarded by grant of a title or decoration or the grant of honorarium or higher salary, but not by promoting him over the heads of innumerable persons appointed in the 1974 batch in violation of the law and the rulings of the Supreme Court that bar regularisation of direct appointees from dates earlier than their selection.
4. The learned Governor acted under section 22 of the Punjab Civil Servants Act, 1974. His action, therefore, requires examination. Section 22 of the Punjab Civil Servants Act, 1974, which is relevant, may be reproduced:-- "Nothing in this Act or in any rule shall be construed to limit or abridge the powevof the Governor 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, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
This power permits the Governor, as the Chief Executive of the Province at the apex, to deal with serious cases relating to civil servants in such manner as may appear to him to be just and fair, which otherwise cannot be sorted out by the Chief Minister or the Punjab Government under the various powers vested in them by the different rules existing from time to time relating to relaxation. This section is primarily a saving section, basically intended to correct serious cases, where unusual factors place a civil servant in serious disability, which requires correction on the basis of equity and justice by the Governor himself, sitting at the apex of the executive hierarchy.
Amendments, additions and substitutions effected in the rules from time to time, mergers in and transfers from one service to another, etc., create a host of problems, where civil servants placed under serious disability and hardship call for a fair and equitable resolution of their difficulties. To meet these genuine cases, the Governor has been granted this special savings power to deal with such cases, so as to remove injustice and inequity which may stand in the way of a civil servant in securing his just rights. In short, it is a power rarely used, unless to serve justice or correct grave injustice, and perhaps never used arbitrarily to reward a person or to grant him an undue privilege over the right of another.
5. Rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, as last amended on 24-12-1985, permits the Chief Minister, for special reasons to be recorded in writing, to relax any of the rules in any individual case of hardship, to the extent prescribed by him. This power in 1979, when the Governor passed the impugned order in this case, was with the Government.
Likewise, rule 18 of the West Pakistan Service of Civil Engineers (Buildings and Roads) (Class-I)
Service Rules, 1967, also grants power to the Government, for reasons' to be recorded in writing, to relax any of the rules in individual cases, if it is satisfied that a strict application of the rules would cause undue hardship to the individual concerned. These provisions permit the Chief Minister and the Punjab Government in individual cases of hardship to relax the rules. It is one thing to remove the strict application of a rule to remove hardship in an individual case. It is another to defeat the rule to bolster an individual's case, so as to destroy another's right. Under these provisions, cases of removal of hardship are dealt with. Since the instant case was not decided under these provisions, one may safely infer that the instant case was not one of undue hardship qua respondent No,2.
What was the field therefore, left open to the learned Governor, to resort to action under section 22 of the Punjab Civil Servants Act, 1974, remains to be seen.
6. Section 22 of the Punjab Civil Servants Act, 1974, since it gives the Governor great latitude to act according to his personal judgment, falls in the field of that special power called 'discretion'. It would not be out of place here to say a few words about this enchanting field of authority. The word 'discretion' is associated with the action of separating, discerning, distinguishing or judging. It deals with the liberty or power of deciding or acting according to one's own personal view, conscience or judgment, as one thinks fit; the controlled or uncontrolled power to decide or dispose of a matter. In legal interpretation discretion, therefore, is sometimes as illusive as the shadow, which stalks the provision that has to be interpreted, and sometimes as firm as the provision, which throws up the illusion. In one case it may permit uncontrolled liberty or power to decide a matter or act on one's own personal pleasure, view, choice or judgment. In another, it may compel a person to decide or act within the stricter or controlled limits allowed by law or rules of procedure or subject to conditions precedent or subsequent laid down for the exercise of the power. Between the two polarities, discretion has never acquired any settled or established meaning which can be applied universally in any given case. Each case, where discretion is to be exercised, has to be judged according to its own facts. The nature of this power in the particular section or rule, the object of the said section or rule, the scope of the Act or the rule where the power appears, or the conditions and limitations which define or limit its exercise, or the conditions precedent which have to be fulfilled before it can operate, all require to be carefully examined, before any idea can be formed as to how it can be exercised.
7. The words "nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant" in section 22 of the Act only show that when dealing with the case of any person the learned Governor can operate in an uninterrupted field, so that any limitation or abridgement provided by any section of the Act or by any rule would not stand in his way to do complete justice. It gives the Governor freedom to ignore limitations and restrictions that may tend to stultify his action. However, the words "to deal with the case of any civil servant in such manner as may appear to him to be just and equitable" bind him not to proceed outside the parameters of being just and equitable. Whilst the first part of the section frees him from limiting factors contained in the Act or the rules, the closing part limits him to that which should not be unjust and inequitable. In short, it is the power to ignore consciously any section of the Act or any rule that may prohibit or restrain the Governor to do what he is attempting to do, provided he limits his action to what is just and equitable. Ephuistically it is the power of trespass circumscribed by the limits of justice and fairplay. What is 'just and equitable'? The Word 'just' denotes that which is right and proper, that which can be justified in law. Since we are dealing with the rights of civil servants under the Punjab Civil Servants Act, 1974, and the various rules that are framed thereunder or are already in force, the word `just' would mean that which is legal and proper under the said Act or the rules or that which imports the exercise of good judgment or discriminatory appraisal within the bounds of reason and which negatives the presence of any arbitrary, unreasonable or capricious determination, or anything which causes injury to a person.
The word 'equitable' means that which is founded in equity, i,e, that which is fair, reasonable, unbiased, impartial, even handed; the construction of a matter according to its reason and spirit.
Thus, the section creates a balance. The learned Governor, in appraising the case of a civil servant, can ignore limiting or abridging factors contained in the Act or in any rule, but he must confine himself within the limits of justice and equity, for no sooner he finds he is about to transgress those limits, a cutoff point arises and he must control impetuousity and stay further transgression, so that the purpose of the law or rule may not be flagrantly violated or defeated under the guise of its exercise. What is just and equitable, would vary in each case, depending upon its facts and circumstances.
8. With the above in view, I would now turn to the order of the Governor dated 18-7-1989. Under rule 8 of the West Pakistan Service of Engineers (B&R) (Class I) Rules, 1967, and Rule 8 of the Civil Servants (Appointment and Conditions of Service) Rules, 1974, the seniority inter se of persons appointed to posts in the same grade in a Functional Unit is determined in the case of persons appointed by initial recruitment, in accordance with the order of merit assigned by the selecting authority and that persons selected for appointment to the grade in an earlier selection rank senior to persons selected in a later selection. This Court has time and again held that persons directly recruited take their appointments from the dates of their selection or regular appointment and not any earlier retrospective dates, such as the dates of their ad hoc appointments, etc. See Inayat Ali v. Manzoor Ullah 1987 SCMR 407 and Wajahat Hussain v. Province of Punjab CA. 240 of 1982 decided by this Court on 20-9-1990. Thus, appellants who were directly recruited in the 1974 batch will rank senior to persons who were recruited in the 1975 batch, such as respondent No,2. The order by the learned Governor permitting the Army service of respondent No,2 from 21-10-1969 to 28-2-1975 to be counted towards his service in his civil appointment as Assistant Engineer, clearly violates the law declared in the above cases, for it amounts to taking the date of regular appointment of respondent No,2 retrospectively back to 21-10-1969. Further, the order of the Governor granting seniority to respondent No,2 over the heads of a number of Assistant Engineers recruited in the 1974 batch, clearly contravenes the provision of Rule 8 of the two Rules cited above, because this also retrospectively takes the date of regular appointment of respondent No,2 back to the 1974 batch and gives him seniority over the heads of the appellants who were recruited in 1974. Surely, the object of section 22 of the Punjab Civil Servants Act, 1974, was not to enable the Governor to flagrantly strike down the very law he was to uphold by its exercise. Still further, the order of the Governor relaxing the condition of 5 years service in the Department as Assistant Engineer for promotion of the said respondent No,2 to the post of Executive Engineer out of turn, contravenes the rights of others because the respondent has been given forced seniority. If it was the case of respondent No,2 that he had also appeared for selection with other persons in the 1974 batch, but his name was not notified because his papers were misplaced and when they were later discovered, his name was notified with officers selected in the 1975 batch, perhaps the Governor would have been justified in treating respondent No,2 as a person belonging to the 1974 batch and an order to that effect under section 22 of the Act would have been both just and fair. The claim of respondent No,2 all along was that his Army service should be counted for purposes of seniority in his civil employment, on the analogy of similar benefits granted to medical practitioners released from Army service who had joined civil employment, on the basis of section 9-A of the Compulsory Service in the Armed Forces Ordinance, XXXI of 1971, which claim was rejected by the Department time and again, as no such legal provision existed governing Engineers. However, it appears that towards the end, the Department misdirected the learned Governor to resort to section 22, which was highly improper, if not highly unjust and unfair. The Department could have advised the Governor to grant seniority to respondent No,2 amongst the direct recruits of the 1975 batch, by virtue of his long and special experience, which action may have passed as just and equitable. The grant of seniority or promotion under section 22, unless it meets the strict test of being just and fair, can only be a colourable violation of the law under the guise of its exercise, which cannot be permitted. Discretion, even where outwardly appearing as absolute, will always be treated as qualified by the terms and spirit of the provision in which it occurs and by the object of the law. See Federation of Pakistan v. Muhammad Saifullah Khan PLD 1959 SC 166, where the President of Pakistan's exercise of discretionary powers under Article 58(2)(b) of the Constitution were struck down for violating the terms and spirit of that Article. The order of the learned Governor in the instant case not only violates the law declared by this Court, which strikes down retrospective regularisation, but directly contravenes Rule 8 of the 1967 and 1974 Rules and adversely affects the seniority and right of promotion of the 1974 batch of direct inductees and I would, therefore, with profound respect to the learned Governor, declare that the same deserves to be set aside.
' For the foregoing reasons, I would accept this appeal, in terms of the final order proposed by my learned brother, which I approve and endorse.
…and 19 more citing cases