1. ORDER S. A. Mahmood (Chairman).--These two appeals by Mr. Azmat Ullab, P.S.E.-l () and by Mr. Mahmood Riffat, P.S.E.-l () will be disposed of by this order, since common question of fact and law are involved therein for decision and since they both claim seniority over the same respondent, namely Mr. Y. A. Siddiqul, The two appellants impugn the Notification dated 28-5-1969 whereby the Government of West Pakistan in the Communications and Works Department fixed the seniority of Mr. Y. A. Siddiqul, respondent No. 2 and the two appellants in the Punjab Service of Engineers Class 1 (Junior), Buildings and Roads Branch, placing the respondent senior to them. They both claim seniority over Mr. Y. A. Siddiqul in Class I (Junior). The two appellants are present along with Mr. Fazle Hussain, Advocate. The Secretary to the Government of the Punjab, C. & W. Department, is represented by Mr. Ghulam Hussain Section Officer. Mr. Y. A. Siddiq!, respondent No. 2 is present along with Sh. Abdul Haque, Advocate. Mr. Azmat Ullah, appellant, was appointed as Temporary Assistant Engineer in the P. W. D. (B & R) of the former Punjab Province and took over on 31-1-47. He was promoted as Offg. Executive Engineer on 12-2-52. On 13-1-55, the Government of the Punjab recommended the appellant to the Public Service Commission for approval of his appointment ln Class I (Junior), while Mr. Y. A. Siddiq!, respondent No. 2 was recommended for appointment to Class II. By notification of 1-6-55, with the approval of the Public Service Commission, this appellant was appointed to Class I (Junior) w.e.f. 24-7-54 on probation for two years, whereas Mr. Y. A. Siddiqi, respondent No. 2, was appointed to Class U by the same notification. In consequence, the seniority of respondent No. 2 was fixed in Class It, while in a later notification the seniority of the appellant was fixed on 3-2-61 ln Class I (Junior). Originally the appellant was confirmed as Executive Engineer, w.e.f. 8-10-59, but by a later notification of 7-10-71, he was confirmed in this rank w.e.f. 14- 10-55. He was promoted as Offg. Superintending Engineer and took over on 9-5-61. He has been confirmed as Superintending Engineers w.e.f. 15-5-66. He is now on deputation to the Governor's Inspection Team ln the rank of Superintending Engineer. Mr. Mahmood Riffat, appellant, was appointed as Temporary Assistant Engineer in tie P. W. D. (B & R) of the former Punjab Province on 10-2-47. He was promoted as Offg. Executive Engineer and took over from 3- 6-52. On 13-1-55, his name was recommended by the Governs ment of the former Punjab Province to the Public Service Commission for approval to his appointment to Class I (Junior) when Mr. Y. A. Siddiq!, respondent No. 2 was recommended for appointment to Class Ii. By notification dated 1-6-55, this appellant was appointed to Class I (Junior) on probation for one year, when Mr. Y. A. Siddiqi, was appointed to Class II by the same notification. This appointment was made with the approval of the Public Service Commission. He was confirmed in Class I (Junior) w.e.f. 24-7-54 by order dated 19-6-57.
2. Originally he was confirmed as Executive Engineer w.e.f. 9-10 60, but by order dated 7-10-71, his confirmation as Executive Engineer was revised to take effect from 14-10-55. He was promoted as Offg. Superintending Engineer and took over on 5-5-61. He has since been confirmed as Superintending Engineer w.e.f. 1-6-66. He Is now on deputation to the Lahore Improvement Trust, Lahore, as Chief Engineer, but he remains in the grade of Superintending Engineer. Mr. Y. A. Siddiqi, respondent No. 2 was appointed as Temporary Assistant Engineer ln the P. W. D, (B & R) of the former Punjab Province from 6*3-45. Thus he was appointed as Temporary Assistant Engineer earlier than the two appellants, but when on 13-1-55, he was recommended by the Government to the Public Service Commission for approval to his appointment to Class II, the two appellants were recommended for appointment to Class I (Junior). By notification of 1-6-55, this respondent was ordered to be promoted to Class II on probation for two years w.e.f. 24-7-54, while the two appellants were appointed to Class 1 (Junior) by the same notification w.e.f. 24-7-54. This promotioo/appointment was notified by the Government with the approval of the Public Service Commission. By order of 29-9-65, respondent No. 2 was promoted to Class II w.e.f. 15-12-51 in supersession of earlier orders. This respondent was promoted as Offg. Executive Eogineer and took over on 4-10-50. He has not yet been confirmed as Executive Engineer. In notification dated 24-4- 69 and 28-5-69, he was promoted to PSE-1 (Junior) w.e.f. 24-7-54. These notifications are impugned by the two appellants, who claim that this respondent could not lawfully be promoted to Class I (Junior) from a pre-integration period for the reasons that no vacancy was available for his promotion to P.S.E.-l and secondly that he had not been declared fit for promotion to Class I by the Chief Engineer as required by proviso (a) to rule 6 of the Puojab Service of Engineers Buildings and Roads Branch (Recruitment and Conditions of Service) Rules, 1942. It is also contended that when this respondent was recommended for appointment to Class II and not Class I, as'the two appellants and the others were recommended, lt followed that this respondent was not considered fit for promotion to Class I and secondly that the two appellants having been promoted to Class I simultaneously must be deemed to be senior to this respondent because of their having been promoted to a higher grade of Class I (Junior). This respondent was promoted as Offg.
3. Superintending Engineer and took over on 11-11-63, but Is not yet confirmed as Superintending Engineer. Mr. Y. A. Siddiq!, respondent No. 2 was appointed earlier as Temporary Assistant Engineer than both the appellants in the P. W. D. (B & R) of the former Punjab Province, but this gave no basic seniority to him ln so far as there were no rules of seniority applicable to these Engineers and they were not members of any regular Service. This Is clear from clause (i) of rule 3 of the Panjab Service of Engineers Buildings and Roads Branch (Recruitment and Conditions of Seivice) Rules, 1942, which defined, 'temporary Engineer' as meaning an engineer in the service of State Railway or of the Public Works Department of the Central Government or a Provincial Government whose appointment is non- pensicnable and who is not a member of any regular service. Temporary Engineers were appointed through the Public Service Commission against posts created temporarily from time to time. The regular service of engineers was either the service as Assistant Engineer in Class II or as Assistant Executive Engineer in Class I (Junior). Those regularly appointed as Executive Engineers got into Ciass I (Senior). Thus respondent No. 2 can take no particular advantage over the appellants because of his earlier appointment as Temporary Assistant Engineer in the matter of his seniority as Assistant Executive Engineer or Executive Engineer. The fact that when the two appellants were recommended by the then Provincial Government to the Public Service Commission for approval of their appointment to Class I (Junior) and respondent No. 2 was recommended for appointment to Class II simultaneously shows incontrovertibly that respondent No. 2 was not considered fit for promotion to Class I, while the two appellants were so considered fit. This proposal was agreed to by the Public Service Commission, and by the same notification the two appellants were appointed to Class I (Junior), while respondent No. 2 was appointed to Class II.
4. Thus by notification of 1-6-55, the appellants were appointed to a higher class of service than the repondent No. 2 and as such were basically senior to him. These appointments to different classes of service were made in spite of the fact that respondent No. 2 had been promoted earlier as Offg.
5. Executive Engineer than the two appellants. With their respective regular appointment to service in Class II and Class I when, the appellants were appointed to Class I (Junior), while respondent No. 2 was appointed to Class II, the respondent No. 2 could not be deemed senior to the appellants. It has been argued by the learned counsel for respondent No. 2 that by reason of earlier appointment as Executive Engineer, respondent No. 2 became senior to the two appellants in that rank. 1a respect of the promotion of the appellants and respondent No. 2 as Offg. Executive Engineer, we have not seen the noting or the ^relevant ^orders promoting them, but we are inclined to hold that they were ad hoc appointments without the approval of the Public Service Commission. This was the usual practice prevailing ln the department, which made ad hoc appointments to the rank of Executive Engineers because of shortage of engineers and the compelling need of engineers to hold divisional charge. We are fortified in this view by the fact that even after appointment as Offg. Executive Engineer the two appellants and respondent No. 2 were promoted to Class I (Junior) and Class II, respectively, on regular basis. Respondent No. 2 was promoted on regular basis to Class I (Junior) much later ln 1969 though w.e.f. 24-7-54. If their appointment as Offg. Executive Engineer was either regular appointment to Class I (funior), or appointment to the cadre of that service, they would not be appointed substantively or on regular basis to Class I (Junior) or Class II, but would be considered for confirmation in Class I (Senior) and promoted as Superintending Engineers. This is not what actually happened, is clear from the above narrated facts. Our attention has bean drawn to clause ( /) of rule 3 of the Punjab Service of Engineers Buildings and Roads Branch (Recruitment and Conditions of Service) Rules, 1942, defining Executive Engineer, which means an Officer holding a superior post in an officiating or substantive capacity and who is appointed to a divisional charge. In our view, the officiating Executive Engineers contemplated by this clause are those engineers who ere appointed with the approval of Public Service Commission, but assuming for the sake of argument that the appointment of the appellants and respondent No. 2 is covered by the 1942 Rules, the appellants are senior to respondent No. 2 as Executive Engineer, because under rule 13 of these Rules, seniority is determined by the date of their confirmation in the Service. While the appellants have been confirmed as Executive Engineer from 14-10-55, respondent No. 2 bas not yet been confirmed.
6. Under theso Rules, the appellants are senior as Executive Engineer to respondent No. 2, if they are to be deemed to be governed by these Rules, but we would like to make it clear that the seniority of the appellants as Executive Engineer was determinable under paragraph 17 (b) of the Integration Circular on the basis of the dates of substantive appointment to the grade. The appellants remain senior to respondent No. 2 ln Class 1 (Junior) by reason of induction into Class I (Junior) by notification dated 1-6-55 when respondent No. 2 was appointed to Class II. The two appellants have been confirmed ln Class I (Junior) w.e f. 24-7-54. Respondent No. 2 has not yet been confirmed in Class I (Junior). Therefore, even in the rank of Class I (Junior) as Assistant Executive Engineer, the appellants are senior to respondent No. 2 under rule 13 of the 1942 Rules if this rule ls^ to be applied in the case of respondent No. 2 as well. The appellants must be treated as basically senior to respondent No. 2 ln Class I (Junior), for the reason that by the order by which respondent No. 2 was appointed to Class II, the two appellants were promoted to Class I (Junior). It is much later by orders of 2S-4-69 and 2S-5-69 that he was notified as promoted to P. S. E-l w.e.f. 24-7-54.
7. This appointment was obviously made under rule 7 of the West Pakistan Service of Civil Engineers (B&R) (Class I) Rules, 1967. While this respondent was appointed to Class 1 (Junior) against a pre- integration vacancy by these notifications, the two appellants became members of the Service under rule 4 (a) of these Rules, as persons holding ln a substantive capacity immediately before the coming into force of these Rules posts included in the cadre of the Service. The respondent No. 2 is a person who fell tinder clause (b) of rule 4 of these Rules, as a person appointed to the cadre/post ln accordance with the provisions of rule 7. On general principles we must hold as we have done in the case of Mr. Kamal Mustafa, Mr. Manzoor Abbas and Mian Iftikharuddin that those who become members of the service under rule 4(a) must be deemed senior to those who are absorbed under rule 4(h). In this connection, we cannot ignore the fact that while the two appellants were substantively appointed to Class I (Junior) ln 1955, respondent No. 2 was not so appointed until 1969 i.e. 14 years later. These notifications could not be used to upset the seniority of those who were membeis of the service substantively on the coming into force of the 1967 Rules, under rule 4(a). All those already members! of the service when the rules came into force must remain F senior to those who were subsequently absorbed against Class l| vacancies. In respect of the notification of 28-5-69, whereby respondent No. 2 was appointed to Class I (Junior) w.e.f. 24-7- 54, two objections have been taken by the learned counsel for the appellants. The first is that no substantive vacancy ln Class I (Junior) being available in pre-integration period, he could not be appointed to Class I (Junior) under rule 7. The second objection is that be could not be appointed to Class I (Junior) on 24-7-54 by reason of proviso (a) to rule 6 of the Punjab 1942 Rules, which provided that no officer belonging to the old service, no engineering subordinate and no apprentice engineer or temporary engineer shall be appointed to the service unless he has been declared by the Chief Engineer to be fit for such appointment. As to the first objection, our attention has been drawn by the learned counsel for the eppellants to para. 6(d) of the comments of respond dent No. 1 by which he admitted the correctness of the fact stated in para. 6(d) of the grounds of appeal in the case of Mr. Mahmood Riffat, appellant. In this paragraph Mr. Mahmood Riffat alleged that on 24-7r54 the assumed post against which respondent No. 2 was promoted was not at all vacant within the meaning of rule 6(a), which referred to the cadre posts corresponding to the pests of the integrating units of West Pakistan 4. All that Mr. Allauddin Khalid, the Proprietor of the appellant-Firm admitted in cross-examination was that "the percentage of profits for publication of books is 10%". This admission, in the absence of any evidence as to the amount of profit which the Firm made on publication of books, does not entitle the workers to any bonus. One does not know what is the amount the Firm received on publication of books. At any rate, it was fori the respondent at least to suggest that the Firm had made huge profits orr4 5 substantial profits, so as to entitle them to any bonus. I would hold that! there was no evidence so as to entitle the workers to any bonus.
5. The learned Labour Court has allowed overtime wages to the workers, which is also based on no evidence. It was for the Union to have proved the number of workers who had worked overtime and had not received wages for the same in accordance with section 47 of the Factories Act, 1934. There is no evidence, whatsoever, to establish that any worker had performed overtime duties and had not been paid for the same. The order of the Court must be such which can be given effect to. An order thatl the workers are entitled to overtime dues is only a declaration. It cannot Is be given effect, in the absence of specific evidence in respect of persons, who| had performed overtime duties. It would, however, be open to any workman to apply for violation of the provision of section 47 of the Factories Act, in case overtime dues were not paid to them. as fell vacant before 14-10-55 and had not been filled substantively, the vacancy against which respondent No. 2 was appointed having actually occurred in 1958. Though this fact was admitted by respondent No. 1, it has been shown to us on behalf of respondent No. 2 that respondent No. 2 was appointed against the vacancy of Mian Muhammad Shaft caused by his promotion in 1958 w.e.f. 24-7-54. Thus we are not satisfied with the contention raised on behalf of the appellants that there was no vacancy available ln the pre-integration period against which respondent No. 2 could be appointed w.e.f. 24-7-54. We must hold that he has been appointed against a vacancy which was available and was not substantively filled in the pre-integration period. As to the second objection, there is force in the contention raised on behalf of the appellants. Though respondent No. 2 has been appointed to a vacancy occurring from 24-7-54, he has filled a vacancy in Class I (Junior) when the 1942 Rules were applicable. Proviso (a) to rule 6 required a declaration by the Chief Engineer that he was fit for appointment to Class I. When respondent No. 2 was recommended for appointment to Class II, lt follows that he was not considered suitable for or fit for pro-* motion to Class I and as such proviso (a) to rule 6 stood in the way of promotion of respondent No. 2 to Class I. The effect of the proviso Is not overridden by rule 7 of the 1967 Rules, in the case of those appointed to pre-integration vacancies. Sub-rule (3) of rule 7 provides that for the purposes of determining seniority of a person appointed by promotion under sub-rule (1) the date when the vacancy occurs to which he is appointed shall be deemed to be the date of his appointment to the service, provided that where the date of such vacancy Is earlier than the date of such person's eligibility for appointment thereto, the date of his eligibility shall be the date of his appointment to the Service. This proviso brings in the operation of proviso
(a) to rule 6 of the 1942 Rules. In view of sub-rule (3) of rule 7 of the 1967 Rules, the seniority of respondent No. 2 could not be fixed from 24-7-54 although he may have been appointed to Class I w.e.f, that date. His eligibility for appointment on 24-7-54 not being there, he cannot count his seniority w.e.f, that date. Thus though the appellants and respondent No. 2 were appointed to Class I from the same date, respondent No. 2 is not entitled to count his seniority from that date. Even on this basis, respondent No. 2 cannot be senior to the appellants. In the above connection, we were referred by the learned counsel for the appellants to the letter of the Public Service Commission dated 15- 3-71 addressed to the Government, saying that the appointment of Mr. Y. A. Siddiqi to Class I with effect from 24-7-54 making him senior amounted to nullifying the recommendations of the Commission as contained in their letter dated 9-4-1955. This letter related to the appointment of the appellants to Class I (Junior). The Public Service Commission advised ln this letter dated Mr. Y. A. Siddiqi, respondent No. 2 could not be made senior to those who were promoted to Class I ln preference to him in 1954. The Commission, therefore, advised that his seniority should be fixed in a manner that he does not become senior to those who were promoted to Class I when he was promoted to Class II only. No decision was taken by the Government on this advice and the matter was left to this Tribunal for decision. We agree with the advice tendered by the Public Service Commission in this connection. Thu9 though the appellants and respondent No. 2 were appointed to Class I w.e.f, the same date, the respondent No. 2 cannot rank senior to the appellants ln Class I (Junior). In relation to the question of inter se seniority of the parties ln the rank of Ofifg. Executive Eaglneer, our attention has also been drawn to sub-rule (2) of rule 15 of the 1967 Rules. This sub-rule provides that notwithstanding anything contained in sub-rule (1), the seniority of Class II Officers and Temporary Engineers recruited to or absorbed in the service, who were holding the posts of Executive Engineers or equivalent posts, shall be determined with reference to their continuous officiation as such. This rule Is not applicable to the case of the appellants, since they were neither Class II Officers nor Temporary Engineers recruited to or absorbed in the Service in pursuance of the Rules, but had been inducted Into Class I Service under the 1942 Rules. Thirdly, this sub-rule is subject to Explanations I and 11 which safeguard the seniority of Senior Class I Officers despite sub- rule (2) ln case when seniors are not specifically superseded. It is obvious that the appellants were not superseded ln respondent No. 2 having been promoted as Ofifg. Executive Engineer earlier than the appellants. It has not been shown to us that respondent No. 2 superseded the appellants in being promoted as Ofifg. Executive Engineer. We may also mention rule 14 of the Punjab 1942 Rules which provides that no Assistant Executive Engineer shall be promoted to the substantive rank of the Executive Engineer unless he has been declared by Government to be fit for the charge of a division and his promotion after this declaration has been made, shall depend on the occurrence of a vacancy in the grade of Executive Engineer. Thus to the rank of Executive Engineer, Assistant Executive Engineers were eligible subject to their declaration by the Government to be fit for promotion. Respondent Nc*. 2 was neither declared fit nor was Assistant Executive Engineer, though appointed as Ofifg. Executive Engineer. It has not even been shown that he was appointed as Ofifg.
8. Executive Engineer against a substantive vacancy. It should be remembered that in these cases, both the appellants impugn the order of 28-5-69, which gave seniority to respondent No. 2 over the appellants in the rank of Class I (Junior). We have shown above that respondent No. 2 cannot rank senior to the appellants in that rank. In respect of this order, the immunity has been claimed by the learned counsel for respondent No. 2 on the ground that it was an order made by Administrator Martial Law Zone 'A' and as such was not open to challenge before us under P. O. No. 3 of 1969.
9. Clause 3 of this Order provided that no Court, Tribunal or other authority including the Supreme Court and a High Court shall-- (a) receive or entertain any complaint, petition, application or other representation whatsoever against or ln relation to the exercise of any powers or jurisdiction by any Special Military Court or Summary Military Court or any Martial Law Authority or any person exercising powers of jurisdiction derived from Martial Law Authority. This clause was obviously intended to cover those limited cases where an order was made by the Courts or Authorities specified therein. The impugned order as it shown on its face was made in the exercise of the powers of the Governor of West Pakistan conferred on him by the Chief Martial Law Administrator.
10. Therefore, it was an order made by the competent authority as defined in the Ordinance and not by a Martial Law Authority. In respect of this order, the Chairman of the Governor's Inspection Team was advised by the Headquarters, Martial Law Zone *C* that the orders regarding fixation of seniority of Mr. Azmat Ullah P.S.E.-l Member (Technical), Governor's Inspection Team contained in notification dated 28-5-69 were issued by the Martial Law Administrator ln his capacity as Head of the Civil Government of the Province and the order was not, therefore, a Martial Law Order and this Tribunal can decide the case pending with it on its merits. This order is dated 2-7-71. The appellants were also referred to this Tribunal for obtaining a decision as to their seniority. It is the order of the seniority which is impugned before us and lt falls clearly within the ambit of section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970. Our attention has also been drawn to the decision of the Supreme Court in Miss Asma Gilani v. Government of the Punjab (I) holding that the Presidential Order 3 of 1969 being a sub-Constitutional legislation could not curtail the jurisdiction that was given to the High Courts and to the Supreme Court by the Constitution of 1962, for that jurisdiction was preserved even by the Provisional Constitution Order. Thus the jurisdiction of the Tribunal and Civil Authorities was not ousted by this Order. It has even been held that the conclusion could not be avoided that the Presidential Order 3 of 1969 was an un-constitutional document, since Agha M. Yahya Khan had no authority to pass such legislation taking away the powers of the Courts in his capacity as President under the Provisional Constitution Order. The Martial Law introduced by him was illegal and, therefore, even as Chief Martial Law Administrator he was not competent to validly pass such orders and it was certainly in excess of the implied authority, if any, given to him by the law of the Field Marshal Muhammad Ayub Khan, dated 24-3-
69. For the reasons stated above, we accept these two appeals declaring the appellants senior to respondent No. 2 in Class I (Junior). We set aside the seniority fixed in the notihcation dated 28-5- 1969 and direct that the two appellants be shown senior to respondent No. 2 in Class I (Junior;. We leave the parties to bear their own costs and, therefore, direct that the securities deposited by the two appellants shall be refunded to them. (l) PLD 1972 SC 139