JUDGMENT Dorab Patel (Chairman).--By an order of the Governor of West Pakistan dated 4th Octooer 1960, the appellant was appointed to the West Pakistan Civil Service (Executive Branch) on probation for two years and his appointment was on the terms and conditions set out in the Government's letter which is Annexure *B* to this appeal. According to this letter, the terms and conditions cf the appellant's service were to be governed by the West Pakistan Civil Service (Executive Branch) Rules, which were then in the course of preparation, but the letter also stated that the Government reserved the right to alter the terms and conditions of the appellant's employment. Now the West Pakistan Civil Service (Executive Branch) Rules (hereafter called the said Rules) came into force' in December, 1964, This was long after the completion of the appellant's probationary period. Bat as rightly contended by him, the effect of these Rules is that he was confirmed in his service on the completion of his two-year period of probation. This was in October, 1962, but the respondents 2 to 10 (to whom we shall refer as the contesting respondents) had been promoted to the P. C. S. (Executive Banch) on various dates between December 1955 and September. 1960. However, according to the appellant, these appointments did not confer any rights whatever on the contesting respondents, under the said Rules or otherwise, because, they were ad hoc appointees only. Secondly, according to the appellant confirmation in service was a condition of seniority and according to him respondents 4, 5, 6, 8 and 10 had been confirmed by ^ an undated order of the Governor issued on 5-6-1967 (Annexure 'D* to tho' appeal). But even this order, according to the appellant, was illegal because it was contrary to the said Rules. Thirdly, according to the appellant, the other contesting respondents had not been confirmed and had remained ad hoc appointees, so that they were junior to him under the said Rules, and on first principles. Bat the allegation that all the contesting respondents were ad hoc appointees is so patently wrong that Mr. Hanafi, the appellant's \ leamed counsel, further submitted before us that the real grievance of the appellant was that the contesting respondents had been confirmed retrospect lively, so as to take away the appellant's seniority, and this, according to him, was illegal and perhaps even malafide. Next, according to the appellant, the confirmation of tbe contesting respondents was illegal because it was contrary to rule 5 of the said Rules, according to which vacancies were to be divided on a fifty fifty ratio between promotees and dhreci recruits. Lastly, according to the appellant, the seniority list of 1967, had correctly shown his seniority, but the 1969 list bad shown him as junior to all the contesting respondents, and this was not only contrary to the said Rules but the list was illegal on the further ground that lt had b;en prepared without notice to him. Hence this appeal in which he seeks a declaration that he is senior to the contesting respondents.
2. The contesting respondents have advanced various pleas in their objections, the common objection being that they are all pre-integration employees and therefore their rights were protected under the Establishment of West Pakistan Act, 1955, so that they were not affected by the said Rules on which the appellant reiied. But the written statement of respondent No. 3 further states that these respondents were Tehsildars and that in view of the practice prevailing ln Baluchistan before the creation of West Pakistan they were entitled to be promoted to the post of Extra Assistant Commissioners. Hence the contention that their promotion to the P C S after the creation of West Pakistan was by right. Then, as to the crucial allegation that they were only ad hoc appointees at least up to 1967, only the 10th respondent has admitted this allegation but relied on the Governor's powers to promote him under the said Rules. As to the other contesting respondents, respondents 3 and 7 have filed copies of their initial orders of appointment which show that they had been appointed on an officiating basis, whilst respondents 4 and 5 have pointed out that they had been appointed to posts which existed on 13-10-1955. The other contesting respondents have denied the appellant's allegation about their being ad hoc appointees and emphasised that their initial orders of appointment did not contain any such indication. The contesting respondents have also advanced other pleas to which we will refer where necessary. Finally, the Provincial Government (respondent No. 1) has also filed its reply and we would refer briefly to its main contentions. Thus, it has not admitted the express allegation of the appellant that all the contesting respondents were ad hoc appointees. It is, however, very unfortunate that its reply is vague and does not specify which of the contesting respondents were ad hoc appointees. Then, as to the question of their seniority and confirmation, it has stated that seniority under the said Rules with regard to promotees was dependent on the date of continuous officiation, and its reply appears to imply or mean that the contesting respondents had been continuously officiating from the date of their appointments as stated by the appellant ln his appeal. Finally, it has pointed out that the contesting respondents had not been confirmed in the PCS for periods of 10 to 15 years through no fault on the part of these respondents. Therefore, on the advice of a committee, the Government had decided to confirm the respondents from the date of their continuous officiation in the PCS, subject to the condition that these respondents were approved for confirmation by the Public Service Commission.
3. We *now turn to Mr. Hanafi's submissions, and we would first dispose of an argument which was advanced very half-heartedly.
This is the labmiision with regard to the seniority list of 1969, and according to r 1975 f'ATEH Khan v.
Govt, of Baluchistan (S. A. Mahmood, Chairman) Mr. Hanafi this list was illegal because it had been prepared without notice to the appellant. On the other hand, according to all the respondents, what the appellant called the 1967 list was only a provisional list, circulated for the purpose of inviting objections, whilst the final list was prepared in 1969 after deciding the objections received.
Naturally therefore, the submission of the respondents was that the question of a fresh notice before the finalisation of the list did not arise. As the burden of proving his plea was on the appellant, he had to produce evidence to show that the 1967 list was the final list which had been illegally altered two years later, therefore we invited Mr. Hanafi to refer us to evidence in this respect. As he was not able to do so, we reject this submission. \ 4. Mr. Hanafi's next submission, which was perhaps the basis of this appeal, was that all the contesting respondents were ad hoc appointees until some of them were confirmed in 1967, whilst the others were confirmed in 1971 or 1972. Even on the averments in the appeal before us, this means that the contesting respondents had been ad hoc appointees for 10 to 15 years and had suddenly been confirmed by the Governor.
The plea is far fetched, and it is not surprising that only the 10th respondent has admitted it.
Additionally, the burden of this plea is heavily on the appellant, and we invited learned counsel to show us the evidence in support of it. He could only refer us to an order of the West Pakistan Government, which is Annexure 'i>* to the appeal. The order, according to the appellant, was issued on 5-6-1967 and by it the persons mentioned therein were confirmed in the P. C. S. (E. B.) cadre. As the persons thus confirmed are all described in the order (Annexure *D*) as the ad hoc appointees, learned counsel contended that this order was sufficient to prove the appellant's submission. The argument is fallacious for more reasons than one. In the first place, the order refers only to respondents 4, 5, 6, 8 and 10, therefore it is of no avail to the appellant against the other contesting respondents. Secondly, even as to these respondents, respondents 4 and 5 have categorically asserted that they had been appoir ted to permanent posts which implies that they had been appointed on an officiating basis. Thirdly, respondents 3 and 7 have filed copies of their initial orders of appointment, which show that they had been appointed on an officiating and not an ad hoc basis, whilst, as we observed earlier, respondents 4 and 5 claimed to have been appointed to permanent posts which also belies the appellant's allegation. We therefore referred Mr. Hanafi-to this aspect of the case, but he did not even attempt to challenge the claim of respondents 3 and 7.
Clearly therefore, the appellant has grossly overstated his case and this does not help him. Lastly, we find that the order on which Mr. Hanafi relied is contradicted by another notification of the Governor filed by the appellant. This notification is dated 5th May 1970, and is Annexure 'Y* to this appeal. Once again, the notification contains an order by which the Governor had confirmed the appointment of several persons into the P. C. S. and significantly all these persons have been referred to as "the following officiating P. C. S. (E. B.) officers". But the officers thus described as the officiating P. C. S. officers Include respondents 4, 5, 6, 8 and 10, who bad been described in the earlier order of the Government (Annexure *D'), as ad hoc appointees. Mr. Hanafi could neither explain this discrepancy in the documents filed by him, nor could he advance any reason to show that the earlier order of the Government was to be preferred to the later order of the Governor. And ln all the circumstances, discussed, it seems to us that the earlier order of the Government contained an error which was corrected by the later order of the Governor. In any event, the burden of proving that the contesting respondents were ad hoc appointees was on the appellant and the solitary document Annexure *D' is not sufficient to prove that plea. The result Is that except for respondent No. 10, the appellant has failed to prove that the other contesting respondents were only ad hoc appointees ia the P. C. S. until their confirmation many years later.
5. Mr. Hanafi's next submission was that even though the contesting respondents had been appointed Into the P. C. S. on an officiating basis, these appointments did not carry with them any rights with regard to promotion or seniority; in other words learned counsel tried to equate officiating appointments with ad hoc appointments. The submission is contrary to reason, but learned counsel feebly submitted that it was supported by the Fundamental Rules 9(22) and 9(28). The former defines a permanent post as "post carrying a definite rate of pay sanctioned without limit of time*', whilst the latter defines substantive pay. We are unable to understand how these definitions have any bearing or relationship with the peculiar submission that officiating appointments carry the same rights as ad hoc appointments and it ii unfortunate that the appellant tried to over-state his case in this manner. However, according to Mr. Hanafi, this peculiar submission was supported by the authorities, and in this connection he referred us to the judgment of the Supreme Court in the Province of East Pakistan v. Muhammad Sajjad Ali Mazumdar (1) and to judgments of the West PakistaL High Court in Zawwar Hussain Shah v. Province of West Pakistan (2), and to Izhar Alam Razvi v. The Chief Secretary to the Government of West Pakistan (3). In the first case, their Lordships held that if an officiating appointee was reverted to his substantive appointment, it did not amount to reduction in rank, and the same view was followed in the other cases. We are in respectful agreement with the decisions cited, but we do not see how the principle laid down in these cases can have any relevance to the submis-i sion that an officiating appointment is to .be equated with an ad hoc appoint-l# ment. But as Zawwar Hussain Shah's case has been expressly referred to ini the memorandum of appeal before us, we may point out that the facts ln that case were very different from those in this appeal. In the first place, the question before the Court was solely of the reversion of the appellant from an officiating appointment to his substantive post. Secondly, the appellant's promotion had been described in the relevant letter of appointment as "purely temporary as a stop gap arrangement for 6 months", and according to the judgment, even the post to which the appellant was thus promoted was temporary. This judgment would have been relevant only if the appellant had led evidence to show that the contesting respondents had been appointed to posts which were temporary posts, the more so as the lst respondent (namely the Provincial Government) has expressly denied the general allegation of the appellant in this respect.
As the appellant has not even attempted to produce evidence, even the observations in the casesl^ cited do not help him, therefore we reject his plea. | 6. We now come to the said Rules, and it is perhaps because of his misplaced reliance on them that the appellant advanced the strange plea that officiating appointments had to be equated with ad hoc appointments. Rule 9 of the said rules deals with seniority and sub-rule (2) deals with seniority in the various grades of service, therefore this sub-rule is relevant (2) (1) PLD 1962 SC 71P L D 1968 Kar. 693 (3) PLD 1971 Kar. 45 t to the dispute between the appellant and the contesting respondents. It reads as follows: < **(2) The seniority ln the various grades of the service of members appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined as under :-- ' (a) in case both the officers appointed by Initial recruitment and the officer appointed otherwise, have been appointed, against substantive vacancies, or both have been appointed against temporary vacancies, with reference to the date of appointment to such vacancy in the case of the officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of the officer appointed otherwise provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment. (b) ........................ (c) ------- - " A bare perusal of the sub-rule supports the claim of the respondents 2 to 9 that they were entitled to seniority over the appellant, because they had been officiating on permanent posts long before his recruitment into the P. C. S. Mr. Hanafi was conscious of this difficulty, hence his extraordinary submission that officiating appointments had to be equated with ad hoc appointments. That plea fails, but his further submission was that rule 9 had to read as a whole and that if lt was so read, in view of the Explanations to sub-rule (1), the appellant was entitled to seniority over all the contesting respondents because they had been confirmed ln the P. C. S. many years after the appellant's confirmation. /The argument is fallacious, because it is the sub-rule quoted which governs seniority rights between members of the service "appointed by initial recruitment vis-a-vis those appointed otherwise".
7. Mr. Hanafi then referred us to rule 5 of the said Rules, and according to this rule appintments are to be divided between promotees and direct recruits on a fifty : fifty basis. Assuming that this rule is relevant, it can help the appellant only if he can prove that the ratio prescribed in this rule has not been followed. He hhs not even attempted to produce such evidence, but in view of the importance of the issue raised we have to observe that the argument must be rejected on several other grounds. In the first place, the rule is obviously directory, and that was the vlewl taken ln Zawwar Hussain's case. ^Secondly, in view of the judgment inp Mukhtar Ahmad v. Govemment of West Pakistan (1) we observed that the| Governor, as the rule-making authority, had ample power to suspend this rule. Mr. Hanafi's only reply was that the rule could be relaxed only for reasons stated ln writing. The submission is not even factually correct, because it has reference to rule 13, which permits the Government to relax any of the said rules "for reasons to be recorded .... in individual cases". But rule 15 confers a similar power on the Governor which is not subject to any conditions whatsoever. Finally, if rule 5 be valid, it is clear that it would prejudice the rights of the contesting respondents, and as they are admittedly preintegration employees, the obvious question which arises for determination Is whether the said Rules could take away or curtail their rights. (1) PLD 1971 SC 846 8. We have referred earlier to the written statement of the 3rd respondent and we would pause here to commend its clarity and precision. Now, the post of Extra Assistant Commissioner is admittedly a post of the P. C. S. cadre, and the 3rd respondent's contention before us is that only the Tehsildars and Superintendents of the former province of Baluchistan had been entitled to these appointments before the creation of West Pakistan. This plea is supported by a copy of an order issued on behalf of the Agent to the Governor-General dated 12-2-1951 (page 135 of our file) and by a copy of an order or letter dated 30th March, 1954, issued on behalf of the Pakistan Government. A'though the appellant is the Joint Secretary of the Provincial Law Ministry, his learned counsel has not challenged the copies of the documents filed by the 3rd respondent, therefore we accept this respondent's contenticn that the practice in Baluchistan, before thr creation of West Pakistan, was that Superintendents and Tehsildars alone were entitled to be appointed to the post of Extra Assistant Commissioner. Now not only can rules not be retrospective, but section 8 of the Establishment of West Pakistan Act, 1955 guaranteed to all persons serving ir Baluchistan- terms and conditions of service not less favourable than those which they were enjoying before 10th August, 1955. As the right of promotion i9 obviously a term or condition of service, we agree with the plea| of the respondents that the rights of Tehsildars and Superintendents to be promoted to the post of Extra Assistant Commissioners was a right guaranteed under section 8 of the Establishment of West Pakistan Act, therefore, if, and to the extent to which rule 5 infringes the preintegration rights of the contesting respondents, it is illegal and void. Similarly, any of the said rules, in so far as they are Inconsistent with these preintegration rights, would be illegal and void to the extent of that inconsistency, therefore the appellant's reliance on the said Rules is misconceived, and, on the other hand, rule 9(2) supports the claim of respondents 2 to 9.
9. The position of the 10th respondent is different because he is an ad hoc appointee and as we have not had proper assistance on the effect of such appointments, we would refrain from deciding the wider question whether this respondent can rely on sub-rule (2) of rule 9 quoted above. However, eyen if he cannot, Mr, Basharatullah relied on rule 15 of the said Rules, and we may observe here that this rule is very similar to subsection (5) of section 241 of the Government of India, Act, 1935. Additionally, as we have shown eailier, the Governor's powers are unfettered in view of the Supreme Court judgment in Mukhtar Ahmed's case.
Finally, the appellant cannot repudiate the contract contained in the Government's letter to him dated 16th September, 1960 (Annexure 'B* to the appeal), which sets out the terms and conditions of his appointment. Mr. Hanafi relied on clauses (/) and (viii) of this letter, but the last clause'of the letter reads as follows: "(x) General.--Government reserve the right to alter or interpret any of the foregoing conditions in a manner less favourable to you and on the account no right of appeal or civil suit shall accrue to you." The language of this clause is plain, and having accepted the contract contained in this letter, the appellant Is precluded from challenging not merely the Governors decisions but even the Government's decision. Mr. Hanafi however submitted that clauses (/) and iyiii) of the letter related to the terms and conditions to the appellant's service and were therefore not governed by clause (x). We are not able to accept this submission because the very fact that this general clause is the last clause means that earlier clauses are subject to it, and that is also clear from the language of clause (x). Therefore, in view of this clause, we do not think that the appellant can even challenge the seniority of the 10th respondent who was an ad hoc appointee, much less the seniority of respondents 2 to 9 unless he can show that the action of the Government was mala fide.
10. Mr. Hanafi therefore feebly attempted to allege mala fides on two grounds. The first, as we pointed out earlier, was that the contesting respondents bad been confirmed witn retrospective effect, and the second p'ea had reference to the Provincial Government's written statement. Taking first the question of she retrospective confirmation of the contesting respondents, we are handicapped by the fact that the Provincial Government has not supplied us the relevant orders. However, the said Rules do not contain any restriction in this respect, nor did the learned counsel refer us to any rules which could fetter the Governor's powers in this respect. And on the other hand, the contesting respondents had not been confirmed although they had continued to officiate for 10--14 years. Mr. Basharatullah contended that these respondents, including even the 10th respondent, were entitled to be confirmed after two years service, and in this view of the matter he submitted that the appellant was automatically junior to ail the contesting respondents. The submission thus raised is wider than is necessary for the decision of this appeal. We are not concerned with the question of the right of the contesting respondents to be confirmed, but whether the Government's action Jn so doing can be challenged as malafide. And in the circumstances, as the contesting respondents had a very legitimate grievance, even if the Government has confirmed them with retrospective effect, that decision cannot possibly be challenged as mala fide.
11. We now tum to Mr. Hanafi's submission that the Government's action was mala fide, because it was inconsistent with the plea taken by the Government in its statement before us. In support of the written statement, the Provincial Government has pointed out in a note that a high powered committee had decided that the "seniority of promoted P. C. S. officers should be determined with reference to date of appointment against substantive vacancies in the quota reserved for promotion provided that the candidate is found suitable by the Commission". Mr. Hanafi's only submission was that the contesting respondents had been confirmed without the* approval of the Public Service Commission. But assuming that such aproval was necessary, the question is of fact and has been denied by all the respondents. Secondly, the question of confirmation was in the Governor's discretion, and even if he disregarded any condition proposed by the high powered committee appointed by him, he was free to do so under rule 15 of the said Rules. And, on the other hand, as explained earlier, except respondent No. 10, the contesting respondents had been promoted on an officiating basis and it has not even been alleged that there was any break in their services, therefore as they had all been appointed before the appellant joined as a probationer, their claim is supported by sub-rule (2) of rule 9 of the said rules, and that is also the submission of tne Provincial Government in its written statement. And as to respondent No. 10, the appellant's claim against him must fail for the reasons we have given ln para. 9.
12. The appeal is without merit and is dismissed, but we leave the parties to bear their own costs.