JUSTICE (RTD.) MUNAWARALI KHAN (CHAIRMAN):-Aggrieved by the Local Government, Public Health Engineering, Rural Development Department's letter dated 10-3-1992, intimating the appellant Khalil Ahmad Soomro that his appeal against the seniority of respondent Munir Ahmed Shaikh had been rejected, the appellant has come up in the present appeal.
2. The appellant's case, as disclosed in his memo at appeal is that being an Engineering Graduate (Civil), he joined Government Service on 5-11-1983 as Development Engineering (BS-17) in the Rural Development Department. Subsequently he was absorbed as Assistant Engineer (BS-17) on adhoc basis in the Public Health Engineering Department. He was ultimately regularized in the said post w.e.f. 22-5-1989 under Sindh Civil Servants (Regularization of Adhoc Appointments) Act, 1989 (hereinafter referred as the said Act). On the other hand the respondent Munir Ahmed Shaikh started his Government service as Survey Officer in the Town Planning Department w.e.f. 14-9.1986.
On his application dated 15th January, 1989, he was deputed to serve in the Public Health Engineering Department where he joined as Assistant Engineer (BS-17), for a period of three years as per notification dated 13th May 1989. While the said respondent was still on deputation, he applied for his permanent absorption in the Public Health Engineering Department, where upon by the order dated 18th September 1989, he was permanently absorbed in the said department, with immediate effect, on the condition that his seniority in the cadre in which he had been absorbed would be reckoned from the date of his such absorption. However by subsequent order dated 18th February, 1990 he was given seniority in the said cadre retrospectively from the date of his transfer on deputation. The appellant challenged the said order in departmental appeal dated 28th October, 1991 which was rejected as mentioned above.
3. We heard Mr. Manzoor Ali Khan for the appellant, MrJvl. L. Shahani for the private respondent and Mr. Abdul Latif Ansari, AA.G. On behalf of the official respondents. We also meticulously went through the relevant record.
4. It would appear that the appellant had serious objection not against the permanent absorption of the private respondent in the Public Health Engineering Department but against allowing him seniority from the retrospective date of 1 's transfer on deputation to that department. In this connection the appellant's learned counsel invited our attention to rule 12 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975 (hereinafter referred as seniority rules), contendenting that the impugned order was in clear violation of the said rule. For appreciating his point of view, the rule 12 is reproduced as under: "12. If an appointment is made by transfer--
(a) a person appointed otherwise than on his own request shall, for the purpose of determining his seniority, be given the benefit of his regular service in other post or posts held by him before his transfer and appointment to the new post.
Provided that if the regular appointment is made in a batch or on the same day, the older in age shall rank senior to younger in age;
(b) a person appointed on his own request shall rank junior to all other persons appointed before him on the regular basis and the persons appointed with him in the same batch or on the same day by promotion or initial recruitment;
(c) the interse seniority of persons appointed on their request in the same batch or on/the same day shall be determined in accordance with their respective dates of regular appointment in the posts held by them before their transfer and appointment to the new posts; provided that if the dates of their regular appointment in such other posts are same,- the order in age shall rank senior to the younger in age."
3. Basing his argument particularly on clause (b) of the above rule, the appellant's learned counsel submitted that since the private respondent was permanently absorbed in the Public Health Engineering Department on his own request, he had to rank junior to all other persons appointed before him in the cadre he was absorbed. The appellant has taken such plea in paras 7 & 8 of his memo of appeal. As disclosed in para 7, the private respondent made application for his absorption as Assistant Engineer (BS-17) in the Public Health Engineering Department. This is confirmed from the Administrative Department's letter dated 31st August 1989, address to the said private respondent, requiring him to appear for written test/interview in connection with his request for the absorption in the Public Health Engineering Department. The said private respondent has admitted the contents of para 7 of the memo of appeal in corresponding para 7 of his written statement. As such it is the private respondents own admission that he had himself moved for his absorption in the Public Health Engineering Department. Again .It is stated in para 8 of the memo of appeal that the respondent No.3 (private respondent) was permanently absorbed in the Public Health Engineering Department with immediate effect vide the order of the Addl. Chief Secretary to Government of Sindh dated 18th September 1989 which further stipulated that on his absorption, the seniority of Mr. Munir Ahmed Shaikh (private respondent) in the cadre of Assistant Engineers, of the Public Health Engineering Department shall be reckoned from the date of his permanent absorption. This is admitted by the said private respondent in para 8 of his written statement. Thus the above order of 18th September 1989 of the private respondent's absorption in the Public Health Engineering Department and the fixation of his seniority in the cadre in which he was absorbed was perfectly in compliance of clause (b) of rule 12 of the seniority rules. Therefore even the appellant had no objection to issuance of the said order.
4. However as stated in para 9 of the memo of appeal the private respondent manipulated to get the order dated 18th February 1990 issued by the Addl. Chief Secretary, whereby in modification of the previous order dated 18th September 1989, the said private respondent was allowed seniority in the cadre of Assistant Engineers of Public Health Engineering Department from 17-5-1989 on which he was first transferred to the said Department on deputation, it was this modified order which actually raised the storm of controversy between the parties, as it was in utter violation of clause
(b) of rule 12 of the seniority rules. The private respondent has attempted to defend the controversial order in para 9 of his written statement which is reproduced as under:- "9. That the contents of para 9 as stated are denied. It is submitted that Government of Sindh in exercise of plenary powers modified the notification mentioned in paragraph 8, as the respondent No.3 was regular appointee on the basis of the recommendation of Public Service Commission while the appellant was regularised after the Sindh Civil Servants (Regularisations) of Adhoc Ordinance) Act 1989 was passed. On that date the answering respondent was already working in the department. Respondent No.3 further submits that originally the word on deputation used was not correct as more or less the department is same. It is further submitted that terms of deputation were not mentioned. Answering respondent continues to draw salary as he was drawing in basic grade-17 in Town Planning Section of the same department."
While elaborating the private respondent's case contained in the above para his learned counsel submitted:
(i) that the previous order of 18th September 1989 was modified by the subsequent order of 18th February 1990 in exercise of the plenary powers vested in the Government.
(ii) that the private respondent was a regular appointee on the basis of the recommendations of the Public Service Commission whereas the appellant's adhoc appointment was regularised under Sindh Civil Servants (Regularization of Adhoc Appointments) Act 1989.
(iii) that the word 'deputation' was un-necessarily appended when the private respondent was transferred to the Public Health Engineering Department because the place from which he was transferred and the place to which his transfer was made more or less were part of ik same department and that there were no additional terms and conditions of the deputation, as he drew the same salary as he was drawing before.
5. As for the learned counsel's contention at (i), the order in question is conspicuously silent in this regard. When the learned counsel spoke of plenary powers of government, he had obviously Section 24 of the Sindh Civil Servants Act 1973 in mind. We are of the view that the said section confers exceptional powers on the Government which can be exercised only in exceptional cases.
In other words unless any particular case was made out to be a case-of hard ship, the said section would not be invokable. Moreover the exercise of powers under the said section are subject to certain limitations which have been spelt out by the Supreme Court in its recent decision reported as Capt (Retd) Abdul Qayyum-Vs- Muhammad Iqbal Khokkar and 4 others (PLD 1992 Supreme Court 184) wherein it was held: "As regards the residual remedial power of the Governor contained in section 23 of the Punjab Civil Servants Act, the bounty and the generosity of the Governor has been placed under a limit. It is not to be so exercised so as to infringe, impair or curtail any of the statutory rights of the beneficiary himself. This is the recognition and effect of Article 4 and Article 240 of the Constitution. The argument that the exercise of this power can ride rough over the statutory right of the others would amount to negation of rule of law, going beyond the contitutional parameters, subordinating of statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by law as anyone else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and considers just and fair but not at the cost of others, not even at the sightest cost of the statutory rights already granted to the beneficiary, This is a power of redressal, of providing a relief and not of impairing statutory rights of anyone."
6.
It is clear from the guidelines laid down by the Supreme Court, that the Government is not invested with unlimited powers under Section 24 here-in- above. The Government can grant any benefit it considers just and fair but not at the cost of otherbecause the power under Section 24 is a power of redressal, of providing a relief and not of impairing statutory rights of any one else. Furthermore in exercise of residuals powers, the Government like all other authorities has to be guided and bound by law. Keeping; the above decision of the Supreme Court in view, we did not see any hardship to be caused to the private Respondent of the controversial order, allowing him seniority from the date of his transfer to the Public Health Engineering Department, had not been passed. He came to that Department of his own free will as he himself requested for his transfer to said Department.
Even his permanent absorption in the said Department was Admittedly made on his own request.
In such a case there was hardly any justification for relaxation of the express provision contained in clause (b) of rule 12 of the seniority rules. Even otherwise there is no indication in the order in question that it was passed in exercise of residuary or plenary powers under S.24 of the Sindh Civil Servants Act 1973. We are unable to agree with the argument that even though Section 24 did not find mention in the impugned order, it could still be assumed that the said order had been passed under that section. As has been mentioned above, since Section 24 conferred an exceptional PW power it was invokable only in exceptional cases. As such the authority competent to exercise the power under the said section had to consciously address itself to the use or application of the powers under Section 24. In other words the said section had to be specifically mentioned in the order, indicating thereby that it had been passed under that section. In absence of Section 24 from the order, the contention raised by the private respondent's learned counsel at (i) has no force and is accordingly rejected as untenable.
7. The same learned counsel's further submission at (ii) was equally un- supportable. If the private respondent claimed his regular appointment on the basis of the recommendations of the Public Service Commission, the appellant's adhoc appointment was also regularized on fulfilment of legal requirements in accordance with the Law of legislature namely the Sindh Civil Servants (Regularization of Adhoc Appointment) Act 1989. As such the appellant's regular appointment could not in any manner be underrated or placed on weaker footing than the regular appointment of the private respondent. Once the appointment is made or adhoc appointment is regularized in accordance with legal provisions, such appointment is call regular appointment. There would be no justification of categorizing any regular appointment as weaker regular appointment as distinguished from any other regular appointment.
8. Coming to the third objection of the learned counsel for the private respondent, even if we agree with him that sending of his client to the Public Health Engineering Department was not a deputation but was ordinary transfer, it would not automatically follow that in consequence of such simple transfer, he became permanent employee of the transferee department and got permanently absorbed in the said department. In any case, his transfer entailed the change of his cadre. Moreover the learned counsel's above objection, stood nullified by the two orders, one dated 18th September 1989 whereby the private respondent was absorbed in the Public Health Engineering Department with immediate effect and the other dated 18th February, 1990 where by his permanent absorption was to take effect from the date of his original transfer to the said department. If the objection at (iii) was given any weight, there was absolutely no need of passing the above two orders. The private respondent's own reliance on the said orders clearly indicated that his transfer was made from one cadre to another cadre, if not from one department to another department and consequently it was necessary to order for his permanent absorption in the new cadre.
9. Apart from above the learned counsel for the private respondent raised one more legal objection that since the notification impugned in the appeal did not mention the name of the appellant, his appeal against the said notification was not maintainable in law. In support of his objection the learned counsel relied upon this Tribunal's decision reported -as Ahsanullah A.
Memon-Vs-Govt. Of Sindh and 3 others (1992 PLC (CS) 1157). It would be noticed that the facts of the reported case were somewhat different and therefore the decision of that case was based on different premise. Of course the appellant's name, as in the above reported case, was not mentioned in the impugned notification. But the more omission of the appellant's name from the impugned notification was not by itself sufficient to hold that the said notification neither contravened the appellant's terms and conditions of service nor in any way aggrieved the appellant. The first notification dated 18th September 1989 by which the private respondent was permanently absorbed in the Public Health Engineering Department was in two parts. The first part spoke of his permanent absorption in the aforesaid Department. If the notification had closed after the first part, the appellant's case would have surely resembled the above reported case of Ahsanullah. But in the instant case the notification of the private respondent's absorption travelled further to state in its second part that consequent upon his absorption, the seniority of the private respondent in the cadre of Assistant Engineers in Public Health Engineering Department shall be reckoned from the date of his permanent absorption. Since the appellant had entered that very cadre on 22-5- 1989, following the regularization of his adhoc appointment, he was obviously not prejudiced in respect of his seniority by the above said notification dated 18th September 1989 whereby the private respondent was allowed seniority in the new cadre of his permanent absorption from the date of his absorption i.e. 18th September 1989. However the said notification was subsequently modified by the notification dated 18th February 1990 which reads as under: "In partial modification of this Department under No.SO (VII) PHE- 2 (4)/89, dated 18-9-1989 Government of Sindh is pleased to decide that the seniority of Mr. Munir Ahmed Shaikh in the cadre of Assistant Engineer (B-17) in Public Health Engineering Department shall be reckoned from 17-5- 1989 the date on which he has joined Public Health Engineering Department."
10. The above notification clearly shows that in modification of the earlier notification of 18th September 1989, the private respondent was allowed seniority in the new cadre retrospectively from 17-5-1989 on which he had joined the Public Health Engineering Department on his original transfer to that Dept. Allowing him seniority from 17-5-1989 would, in other words, mean that he was placed above the appellant seniority-wise because the appellant, as stated above, had entered the same cadre on 22-5-1989. Thus the appellant was aggrieved by the modified notification of 18th February 1990, as he was there made junior to the private respondent in the cadre of Assistant Engineers of the Public Health Engineering Dept. Therefore the objection that the impugned order provided no cause of action to the appellant was without any force.
11. The upshot of the above discussion was that the appeal must succeed. Accordingly it is allowed with no order as to costs.
Given under our hands and the seal of this Tribunal this 23rd day of February, 1993 at Karachi.