1. NASIM HASAN SHAH, J.-The facts, which from the background of this appeal, shortly stated are as follows:-- Respondent No. 1 joined service as Assistant Engineer (P. S. E. II) on 1-8-1955 and was promoted as officiating Executive Engineer with effect from 10-7-1961 and confirmed as such with effect from 1- 4-1972. While working as Executive Engineer he was retired from service under Martial Law Regulation 114 with effect from 13-3-1972. On his review petition under Martial Law Order 23 he was reinstated in service by the Martial Law Administrator vide Notification dated 5-4-1978.
2. The case of respondent No.1 for promotion to the rank of Superintending Engineer was considered alongwith others by the Department keeping in view the orders of the Federal Government contained in its memorandum No.3/3/78-RII dated 5-7-1978 as adapted by the Punjab Government vide its letter No.SO(SOII)1-2/78 dated 19-7-1978 and consequently he was promoted as Superintending Engineer with effect from 6-11-1982. In the meanwhile, respondents Nos.2 to 12, who had joined service in the Irrigation Department in WPSE-11 on 1-8-1961 and promoted as Executive Engineers on different dates later than the date of promotion of respondent No.1, were promoted to the rank of Superintending Engineers on different dates in 1977 and 1978, i.e. During the period when the respondent No.1 was out of service due to retirement under Martial Law Regulation
114. Accordingly, in the seniority list of the Superintending Engineers notification dated 16-7-1983 respondent No.1 was shown below to the said respondents. He filed a representation on 30-8-1983 which was rejected by the Secretary, Irrigation and Power Department, Government of Punjab vide letter dated 21-4-1984. He then filed an appeal before the Punjab Service Tribunal, Lahore against the seniority position in the seniority list of the Superintending Engineers notified on 16-7-1983. He prayed that he be placed in the seniority list immediately above respondents Nos.2 to 12. He also prayed that he be granted pro forma promotion with effect from 5-4-1977.
3. The learned Punjab Service Tribunal vide judgment and order dated 7-1-1985 accepted the appeal of respondent No.1 qua respondents Nos.2 to 12 relying on its earlier judgments given in the cases of Syed Kabir Hussain Shah and Bashir Ahmad Kamlana (Appeal Nos.380/755 of 1980 and 166/1280 of 1981 decided on 5-5-1982). The seniority list dated 16-7-1983 was set aside and it was declared that respondents Nos.2 to 12 were junior to respondent No.1 as Superintending Engineers. The learned Tribunal further ordered that the case of respondent No.1 for pro forma promotion as Superintending Engineer from the date his next junior was so promoted be also taken up by the Department. Hence this appeal, by leave of this Court.
4. We have heard Mr. Gulzar Ahmad Qureshi and Mr. Hamid Khan, learned counsel for respondents Nos.2, 5 and 8 in support of the appeal. Respondent No.1 has been heard in person.
5. The basic question falling for determination in this case is whether the Office Memorandum No.3/3/78-RII dated 5-7-1978 on the question of the issues arising out of the re-instatement of Government servants retired under Martial Law Regulation 114 but re-instated under Martial Law Order 23 governs the case of the respondent No.1 or the normal seniority rule that the person senior in the lower grade will rank senior in .The higher grade irrespective of his date of promotion to the said higher grade unless he was considered along with his juniors at the time of their promotion and was superseded? The office memorandum dated 5th July, 1978 in clause (e) provides that-- "The persons re-instated in service may be considered for promotion or the basis of their seniority in the grade held by them in accordance with the normal rules. On promotion to higher grade, they may be allowed pay and seniority from the date of their regular appointment to the posts in the higher grade. There will be no automatic promotion on the principle of `next below' rule."
6. (Underlining is ours).
7. This office memorandum was issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division but stands adopted by the Punjab Government and was circulated to all the authorities concerned vide letter No. SO(SXII)1-2/78 dated 19th July, 1978. However, the Service Tribunal relying on its decision rendered by it in the cases of Syed Kabir Hussain Shah and Bashir Ahmad Kamlana held that the provisions of the abovementioned office memorandum could not prevail over rules of seniority formulated by the Governor on the principle that an Office Memo or a Letter emanating from an authority howsoever high can have no effect against the provisions of the statutory rules promulgated by the Governor.
8. In the meanwhile, this Court has had the occasion to consider the decisions rendered by the Service Tribunal in the cases of Syed Kabir Hussain Shah and Bashir Ahmad Kamlana in the case of Government of Pakistan and another v. Junejo Muhammad Iqbal and others (PLD 1987 SC 427) and the view taken by the Service Tribunal in the abovementioned decision has been disapproved. It was, inter alia, observed that-- "Consequent upon the reinstatement of a large number of officers who had remained out of service for a number of years the Government was faced with a number of difficult questions. One of these was how to rehabilitate them in their erstwhile services, cadres or grades. It resolved this question by directing that they should be placed in the same position in their erstwhile grades which they would have enjoyed had there been no retirement. This decision of the Government is reflected in clause (d) of the memorandum. During the period the reinstated officers were out of service a number of promotions had been made. The officers promoted included those who were junior to the reinstated officers. Thus another question which the Government had to answer was how the reinstated officers should be placed with reference to those who were junior to them but were promoted in their absence. On this question the Government resolved that on promotion to higher grades these officers should be allowed seniority from the date of their regular appointment to a post in the higher grade and that the benefits of the convention known as the `next below rule' should not be given to them. Clause (e) of the memorandum incorporates the decision of the Government in this regard. Whether this decision was fair or not is a matter upon which we can hardly offer any comments. It was a policy decision and we have no doubt that in formulating its policy the Government must have taken into consideration all the relevant facts including the interests of those civil servants who remained in active service throughout the relevant period."
9. It was also observed in this judgment that: "As already indicated the question of seniority of the respondents has to be decided in the light of the office memorandum of 5-7-1978 and not in accordance with the general principles of seniority as contained in the office memorandum of 31-12-1970. Clause (e) clearly states that on promotion to the higher grade the reinstated civil servants will take seniority from the date of their regular appointment to a post in that grade. That being the position the claim of the respondents that on promotion they were entitled to regain seniority in the next higher grade over those who were junior to them in the lower grade at the time of their retirement must be rejected."
10. But this does not conclude the matter for according to the Service Tribunal since the Office Memorandum of 5th July, 1978 is inconsistent with the statutory rule on the point as it provided for promotion on the principle of "next below rule", the part of the memorandum, which is violative of the relevant statutory rule, cannot be given effect to, as it does not stand on a higher footing than the sari statutory Rule.
11. In this connection, however, it needs to be pointed out that this Court has held in several decisions that where an office memorandum is expressed in precise terms, which are capable of being applied with particularity to a great Variety of cases and in particular those instructions can be applied with exactness in number of cases, the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant respect and be regarded as supplementing them see for example Pakistan v. Abdul Hamid (PLD 1961 SC 105)].
12. In this particular case, the memorandum in question dealt with the cases of a very special category namely of officers who were retired under Martial Law Regulation 114 but subsequently re- instated under MLO 23 and has prescribed the manner in which the re-instated officers will be placed vis-a-vis those officers who were junior to them lout were promoted in their absence on account of their; severance from service. Furthermore, the Memorandum having been issued by the same authority which also possesses the power of rule-making, though not expressed its a rule but possessing all the characteristics of a rule, its terms shall be construed to amplify and adapt the statutory rule which provides for promotion on the principles of "next below rule" in the cases of these officers. Hence it would not be correct to stay that the Office Memorandum is inconsistent with the statutory rule which provides for promotion on the 'next below rule". In, practical terms, it is really an amplification thereof, providing for the exceptional situation that has arisen by the re- instatement of outers under M. L.0.23 who were retired many years ago under M.L.O.114 a situation which was normally unimaginable and for which no adequate provision existed in the existing rules.
13. We may also point out that the "next below rule" incorporated in Note 4 is not a statutory rule but merely a convention and does not enjoy the status of law. Its true scope and purpose has been explained in some detail in our recent delivered judgment m Government of Punjab v. Safdar Ali Chaudhry and others (Civil Appeal No. 527 of 1988). We have explained that the status of Note 4 is not higher than the guidelines contained in the "Promotion Policy" of 1982 which were issued to deal with cases of officers securing assignments in foreign countries for considerable periods during which period their less fortunate colleagues serving in Pakistan became eligible for promotion to the next higher grade. In effect, the Promotion Policy merely supplements the existing guidelines contained in Note 4 to Rule 4.13 of the Civil Services Rules in the light of the special situation just mentioned. The Office Memorandum dated 5-7-1978 stands on the same footing and deals with another unusual situation which could not be visualised earlier.
14. The upshot is that this appeal must succeed. It is, accordingly, allowed and the impugned judgment of the Service Tribunal set aside. Since the case involved a complicated question of law, the parties are left to bear their own costs.