JUSTICE (RTD) MUNAWAR ALI KHAN, CHAIRMAN.- In this appeal, Mr. Ahsanullah Memon, an Executive Engineer in the Education Department, Government of Sind, has called in question the said Department's notification dated 22.6.1989, whereby Mr. Akbar Hussain Rashidi (hereinafter referred as .Private respondent) has been permanently absorbed as Executive Engineer in the Directorate of Engineering Works of the same Education Department w.e.f. 31.7.1985.
2. The appellant's case is that he was a Project Assistant Engineer (BS- 17) in Agriculture University, Tando Jam when he was deputed to serve in the same capacity in the Sind Government's Department of Education. Following his Selection by the Sind Public Sendee Commission, his appointment on deputation was converted into a regular appointment vide Education Department's notification dated 14th July, 1980. Subsequently with approval of the Departmental Promotion Committee (i.e. DPC) the appellant was promoted to the post of Executive Engineer (BS- 18) w.e.f. 20.11.1985. Meanwhile the private respondent who was already working as Executive Engineer in the Sind University was posted in the same capacity on deputation for a period of two years in the Works Division of the Education Department, by-ifs notification dated 11th August 1985.
By subsequent notification dated 8th April 1986 of the same Department, the private respondent was absorbed in the Directorate of Engineering Works, Education Department. However, this notification was cancelled by the impugned notification hereinabove whereby the private respondent has been permanently absorbed w.e.f. 31.7.1985, the date of his joining the Education Department. Having felt aggrieved by the private respondent's retrospective absorption on permanent basis the appellant preferred departmental appeal dated 20th July, 1989 to the Chief Minister. As the said appeal remained un-disposed even after lapse of 90 days, he came up in the present appeal.
3. We heard the arguments of Mr. Manzoor Ali Khan for the appellant, Mr. M.L. Shahani for the private respondent and Mr. M. Aqil Awan for the official respondents and carefully went through all the relevant record with the assistance of the said learned counsel.
4. To begin with, we would like to dispose the preliminary legal objection raised on behalf of the respondents. The contention of the learned counsel for the respondents was that since the appeal was not filed in terms of Section 4 of the Sind Service Tribunals Act 1973, (hereinafter referred as the Service Tribunals Act) it was not maintainable and was liable to be dismissed on that ground.
Clarifying his objection further, the learned counsel for the private respondent submitted that the impugned notification by itself did not adversely effect the terms and conditions of the appellant's service giving him any cause of action. According to him, if at all the said notification caused any apprehension in his mind about his seniority vis-a-vis the private respondent in cadre of Executive Engineers, he should have challenged the seniority list when it was issued. But he took no step whatever in that direction and the seniority list in which the appellant was shown junior to the private respondent remained un-challenged. In reply to above arguments, all that the appellant's learned counsel stated was that the appellant had challenged the tentative seniority list but some how the appeal filed in this regard before this Tribunal was dismissed additionally he reiterated his argument that the appellant was within his right to challenge even the impugned notification which had the effect of making the private respondent senior to the appellant. The learned State counsel more or less adopted the arguments of the learned counsel for the private respondent.
5. We have given our due thought to the arguments made at the bar on the above legal issue. It appears to us that the views expressed on behalf of the respondents were not without force. In our opinion the appeal is rather premature. If appellant's another appeal based on tentative seniority list was dismissed, he should have waited until finalization of the said list. We have perused the relevant documents of the appellant's appeal (Appeal No: 101 of 1989) dismissed in limine. We were surprized to note that the said appeal was filed during the pendency of the present appeal.
Moreover the seniority list produced in that appeal was not tentative. In the said seniority list appellant's name rather appeared at the top and the private respondent was shown junior to him at Serial No: 4 of the list rather than with regard to inter-se seniority of the parties. As such the appellant had no cause of action to file that appeal which was therefore dismissed in limine. Even in this appeal, the appellant has shown undue haste in rushing to this Tribunal without any cause of action. It was disclosed in course of the arguments that one more seniority list was issued during the pendency of this appeal. In that list the private respondent had moved to the top with appellant's name appearing below him. But the said seniority list was allowed to go unchallenged, as the appellant neither moved for amendment in the present appeal nor filed fresh appeal in the light of the said seniority list.
6. As for the impugned notification, we are in agreement with the view that it by itself did not provide any cause of action to the appellant. No doubt it was a potential danger to the appellant's seniority vis-a-vis the private respondent. But unless it hat! Actually disturbed his seniority, the cause of action could not be held to have accrued to the appellant. Howsoever imminent may be the fear of the future, it could not provide the basis for launching the litigation. Because there was always a possibility of intervention of some unforeseen events capable of averting the adverse occurrence. In the instant case the appellant's fear that the impugned notification posed a positive threat to his seniority may be quite genuine but until it became reality by way of adverse entries in the seniority list or by such other step taken in the light of the said notification, the appellant could not be held to have been aggrieved in respect of his terms and conditions of service within the meaning of Section 4 of the Service Tribunals Act. The impugned notification does not even remotely make a mention of the appellant's name. It has absolutely no linkage with the appellant or violation of his terms and condition of service. Accordingly we are convinced that the impugned notification did not provide any cause of action to the appellant for filing this appeal which therefore must fail on this ground.
7. Despite our above findings, we wish to go ahead with examining of the case on merits. As for the impugned notification, the learned counsel for the appellant has assailed it on various grounds listed below:
(a) that rule 148 of Sind Civil Service Rules under which the impugned notification was allegedly issued had already been superseded by the Sind Civil Servants Act 1973 (hereinafter referred as the said Act) and the rules framed thereunder and as such it was no longer an existing law.
(b) that since the absorption of the private respondent was not made in the prescribed manner in as much as that his appointment by transfer was not cleared by the DPC, the question of regularization of his appointment did not arise.
(c) that the impugned notification has the effect of retrospective regularization of the private respondent's service which is not permissible under the law.
(d) that under section 24 of the said Act the Government could pass order only to the extent of allowing the benefit of compensatory nature.
8. Taking up the learned counsel's point at S. No:(a) hereinabove, we are inclined to agree with him that rule 148 of Sind Civil Service Rules was no longer alive as it being inconsistent with the existing rules had, by implication, been superseded. We can not persuade ourselves to support the view point advanced by the private respondent's learned counsel that the above-said rule continued to be effective until it was expressly repealed. Rule 148 is in two parts: one part relates to transfer of persons from Local Fund (Statutory Body) to Government service and their treatment on such transfer and second part is with regard to Government's power to allow such transferee employees to count their previous service on such terms as deemed fit. As for the first part of the rule 148, we may refer to Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred as 1974-Rules). Part 11 of these Rules deals with appointment by promotion or transfer. In this part sub rule (2) of rule 7 which is relevant reads under: "(2) Appointments by promotion or transfer to posts in grade 3 to grade 18 without special pay other than the posts for which Provincial Selection Board has been constituted under rule 6-A, shall be made on the recommendations of the appropriate Departmental Promotion Committee."
9. With framing of above sub-rule for making appointments by transfer to Government posts in grade 18, the first part of rule 148 referred to above was obviously render ineffective and hence repealed by implication. So far second part of the rule 148 is concerned, it speaks of allowing the benefit of past service to the Local Fund's employees transferred to the Government service. In this connection we may refer to rule 12 of the Sind Civil Servants (Probation Confirmation and Seniority)
Rules 1975, (hereinafter referred as Seniority Rules). The said rule deals with fixation of interset seniority of those who are appointed by transfer. As provided in clause (a) of the above rule, if transfer was made otherwise then on the appointee's own request he would be given the benefit of his past service for determination of his seniority. But as per clause (b), if his appointment by transfer was made on his own request he would rank junior to all those in the cadre who were appointed before him on regular basis. Accordingly second part of rule 148 also became extinct on enactment of rule l2 of the seniority rules. As such rule 148 herein-above was not in force when the impugned notification was issued.
10. The points at (b) and (c) raised by the appellant's learned counsel are interlinked and therefore they are discussed together. As pointed out above, appointment by transfer to the post in grade 18 is made on recommendations of the relevant DPC. It is not denied that in the case of private respondent the said Committee was not taken into confidence. Accordingly the appellant's learned counsel was correct in his argument that his appointment was anything but regular appointment.
As stated in sub-section (2) of section 8 of the said Act, seniority of a civil servant is to be reckoned as may be prescribed obviously by rules. The seniority rules are the relevant rules for determination of seniority. Rule 10 of the said rules, which is material is reproduced as under: "10 (1) Subject to the provision of rule 11, the seniority of a civil servant shall be reckoned from the date of his regular appointment.
(2) No appointment made on adhoc basis shall be regularized retrospectively."
It is clear from above rule that seniority is to be determined from the date of regular appointment of a civil servant. As stated above, the case of the private respondent's appointment was never referred to the relevant DPC nor the said Committee gave its approval to his appointment.
Consequently his seniority in the cadre of Executive Engineers (BS-18) can not be reckoned from the date of his so called permanent absorption. The contention of the appellant's learned counsel seemed to carry weight in as much as that the impugned notification gives an impression that the private respondent's absorption in the post of Executive Engineer was not only regularized but also regularization was made effective retrospectively. Of course in normal circumstances retrospective regularization is prohibited vide rule 10 (2) of the seniority rules.
11. This brings us to the important question if by virtue of powers conferred by section 24 of the said Act, the Government was competent to ignore the intervening selection authority (i.e. Departmental Promotion Committee) and regularize the appointment of the private respondent on its own without approval of the said authority and further give retrospective effect to such regularization. For the sake of convenience we may reproduce Section 24 of the said Act as under: "24. Nothing in this Act or in any rule shall be construed to limit or abridge the power of Government to deal with the case of any civil servant in such manner as may appear to it 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."
12. On interpretation of the above provision of law, several authorities have been brought to our notice. The First case in the series is the un-reported case of Mr. Nayer Bari (Appeal No: 54/87) decided by this Tribunal vide judgement dated 20th March, 1989. In the said case it was inter alia held: "There can not be two opinions: that the case of the said respondents relating to determination of their seniority in Grad-18 was a hardship case. The appellant who entered Grade-17 on 19.9.1968 was more than ten places junior to the said respondents in the said grade, as they were inducted in that grade during the period from 1963 to 1965. If they had not been assigned the same seniority position in Grade-18, which they enjoyed in Grade-17, they would have become many places junior to the appellant. As such not only their further promotion would have been postponed until after promotion of the appellant nut also they could at times be posted as his subordinates. Since they were restored to the position as if they had not been retired under MLR 114, justice and equity demanded that they should not be made to suffer in the said manner. Because the legal hitch in their way was obvious not insurmountable. Accordingly the Government was perfectly justified in issuing the impugned notification to undo the wrong caused to the said respondents."
13. It would appear that the case of the private respondent has very close relationship with the above case. Like the respondents in the un-reported case, he was also senior to the appellant as he was holding senior post of Executive Engineer even in the Sind University when he was called on deputation to serve in the Education Department, Govt, of Sind. At that the the appellant was still working in lower post of Assistant Engineer in the same Department. It is also not disputed that his appointment on deputation in Government service was not on his own initiatives. It is true that private respondent had moved for his permanent absorption in Government service but the summary put up to the Chief Minister for that purpose indicates as if the Department was more anxious than the respondent himself for his continuation in Government service on permanent basis. This is clear from the relevant portion of the summary containing the Secretary Education's observations which reads as follows: "The Administrative Department had intended and wished to have Mr. Akbar Rashdi absorbed from the date of his joining i.e., 31st July, 1985 because of his excellent performance put inadvertently the specific date of his absorption could not be mentioned in the Summary resulting in his absorption in the Education Department w.e.f. 8th April 1986. This has definitely placed Mr. Akbar Hussain Rashdi in a disadvantageous position, because meanwhile some junior Assistant Engineers of the Department who at the the of Mr. Rashdis induction in the Education Department were not eligible for promotion on account of their not having rendered the prescribed length of service i.e. 5 years whereas Mr. Rashdi was already in BS-18 when he joined the Education Department. The people who got promoted in the meanwhile were M/s. Ahsanullah Memon and Mahmood Ali Lakho. They were promoted to B-18 on 11 December 1985. Mr. Lakho even served under Mr. Rashdi as an Assistant Engineer."
14. In view of the above recommendations in favour of the private respondent by no less a person than the Secretary of the Department, the argument that since the private respondent had himself taken the initiative for his permanent absorption, he was not entitled to the benefit of his past positions lost much of its force.
15. Another authority which has been relied upon by appellant's learned counsel with regard to interpretation of Section 24 hereinabove is reported as PLD 1980 S.C. 153 wherein it was held: "...The reading of the section and the proviso, as a whole, makes it clear that it is a residuary provision and as held by this Court in Pakistan V. Abdul Hamid (PLD 1961 SC 195) it enables the Government to deal with the case of any person under the to justice and equity, so long as he is not treated less favourably that the Rules require and the Government can, within its plenary power, make adjustments of a compensatory nature."
I6. Basing his, arguments on the above authority, the learned counsel expressed the view that while exercising power under section 24 of the said Act, the Government could award only some monetary compensation. We regret our inability to agree with such interpretation of Section 24 herein above nor in our opinion, such meaning should be attributed to the observations of the supreme Court. The dictionary meaning of the word "compensate" is to make amends for, or to recompense; to counter balance; to make up. More over the Government has plenary power under the above section and it is free to pass any order which is just and equitable. Such powers, in our opinion, can not be clipped so as to be restricted to allowing only money compensation. In the case of private respondent justice demands that while being absorbed in Government service he should not be placed in such a position that he is faced with undue embarrassment of being subordinate to his own juniors. The case of Ijaz Hussain Kazi (1988 PLC (C.S) 916) relied upon by the learned counsel for the appellant would not be helpful to him as exercise of powers under section 24 of the said Act was not involved in that case.
17. Apart from above, we have also come across the Supreme Court authority reported as PLD 1971 Supreme court 846 wherein it was held: "It is admitted on behalf of the Government that the Governor did, in fact, approve the proposal for selection of 46 candidates for training and their eventual appointment as Assistant Agricultural Engineers in the exigencies of the circumstances. Thus, the order of the Governor dated the lst June, 1965, by which he approved the method of Selection of candidates for appointment as Assistant Agriculture Engineers after their successful completion of the training, is an order having the statutory force, clause (2) of Article 178 of the 1962- Constitution empowers the Governor to make rules relating to recruitment to civil service and civil posts in connection with the affairs of the Province. This clause does not provide that the recruitment rules are to be made in any particular manner, nor does it require previous publication of the rules in the official Gazette. That being so, the Governor order, dated the lst June 1965 prescribing the special method for appointment of 46 candidates to the posts of Assistant Agricultural Engineers was as operative as the Recruitment Rules themselves made by the Governor on the 18th June 1963. By the Governor's aforesaid order, the earlier Recruitment Rules shall be deemed to have been modified so far as recruitment to the 46 posts of Assistant Agricultural Engineers was concerned. In other words, the departure made by the Governor's order of the lst June, 1965 as regards selection for training and eventual appointment as Assistant Agricultural Engineers amounted to a special rule of recruitment governing these 46 posts only in order to implement the scheme called "Development of land and provision of machinery for augmenting water supply in West Pakistan". The view as above was taken by the High Court of West Pakistan, Lahore in the case of the Province of the Punjab v. Ch. Nazir Hussain, (1) (PLD 1956 Lar as affirmed by this Court in its decision reported in PLD 1960 SC 130.
There are also other decisions of this Court to support the view that the order of the Governor, dated the lst June 1965, has all the characteristics of statutory rules. These are cases of Pakistan v.
Abdul Hamid (2) (PLD 1961 SC 105) and The Province of west Pakistan v. Din Muhammad (3) (PLD 1964 SC 21). Both these decisions were later cited with approval by this Court in the case of Muhammad Naseem Ahmad v. Azra Feroz Bakht (4) (PLD 1968 SC 37)."
18. The above authority clearly shows that the Governor (or Govt.) who is empowered to make rules can pass order even outside the rules and the order so passed would be deemed to have modified the rules in respect of the case in which it was passed. Thus the wisdom envisaged in Section 24 of the said Act is confirmed by the Supreme Court in the above reported case in as much as that notwithstanding any rules or legal provisions, the Government or rule-making authority should not be helpless or handicapped in dealing with any case in just and equitable manner.
19. In the light of above authorities, we are inclined to the view that it would not be unjustified if the Government in exercise of its plenary jurisdiction under Section 24 hereinabove passed on order seeking to improve the private respondent's seniority vis-a-vis the appellant by allowing him the benefit of higher positions that he had held prior to his absorption in Government service. But this could be done only after the private respondent's absorption (appointment) in Government service was regularized in accordance with the prescribed procedure. For compliance of this requirement, all that is needed is to obtain the approval of Selection Committee i.e. DPC as regards fitness of the private respondent for the post of Executive Engineer. In our opinion neither Section 24 herein- above nor the aforementioned precedent cases seem to concede power to the Government to substitute itself in place of the Selection Committee/Board for the purposes of determining the fitness of the private respondent for the job in question. If such power is allowed, it may be misused and thereby create unnecessary misunderstanding against the Government. Moreover if power of making selections on merits is vested in Government it is likely to be repeatedly used rendering the selection authorities such as Public Service Commission and Departmental Committees/Boards absolutely redundant.
20. The upshot of above discussion is that the appeal fails. It is dismissed with no order as to costs.
21. Given under our hands and Seal of this Tribunal of this 29th day of July, 1991 at Karachi.