1. ' HAMOODUR RAHMAN, C. J.-This is a petition under Article 123 of the Constitution of 1962, read with the Provisional Constitution Order, 1969, for the conviction of the Member (Taxation), Central Board of Revenue, Government of Pakistan and the Secretary to the Government of Pakistan, Ministry of Finance for contempt of Court.
2. ' The petitioner, who was an employee in the Income-tax Department, filed an appeal, being Civil Appeal 44 of 1967 in this Court against the judgment of the High Court of West Pakistan in Writ Petition No, 396 of 1962 in relation to a dispute as to the inter se seniority of promotees and direct recruits in the cadre of Income-tax Officers Class 1. The judgment of this Court in the said appeal was delivered on the 18th October 1967, and is reported as Muhammad Naseem Ahmad v. Miss Azra Feroz Bakht (1).
3. ' The petitioner says that by this judgment, the petitioner was declared to be entitled to seniority with effect from 18-11-1957, but the said respondents had failed and neglected to give effect to the petitioner's seniority in terms of the judgment of this Court. The petitioner had also actually filed a suit, being Civil Suit No, 2086 of 1970, in the Court of a Civil Judge, 1st Class, Karachi, seeking the enforcement of the judgment of this Court, but even during the pendency of that suit, the respondents confirmed certain directly recruited officers with retrospective effect from the date of their initial entry into service in order to defeat the right of the petitioner.
4. ' Indeed, the contumacy of the respondents, according to the petitioner is further manifested by the fact that they, notwithstanding the judgment of this Court, sought clarification from the Central Public Service Commission as to the date of final certification of the petitioner and the Commission by letter No, F-2/69/56-S. III, dated 7/8th May 1969, stated that the date of unconditional certification of the petitioner was 18-11-1957. Notwithstanding this clarification the respondents ignored the advice of the Central Public Service Commission and persisted in asserting that the Central Public Service Commission had no right to express such an opinion even though this opinion conforms with the opinion of the Ministry of Law and the earlier incumbents of senior posts in the Ministry of Finance itself.
5. ' The respondents, on the other hand, deny that they have acted contrary to the judgment of this Court in the case reported in PLD 1968 S. C.
37. According to them, that judgment left it to the Government to confirm an officer from such date as it thought fit. Acting on this principle, the Department confirmed the direct promotees with effect from their respective dates of entry into service and after this had been done, the petitioner could not make any grievance at all. The seniority of those confirmed before 18-11-1957 would, at any rate, be above the petitioner.
6. ' Furthermore, 18-11-57 was the date only of provisional certification by the Public Service Commissioner. The final certification came much later on the 23rd July 1958, and it was only in its communication of the 23rd September 1958, that the Public Service Commission purported to say that the latter certification shall be treated as final from the date of the provisional certification.
7. This again was contrary to what this Court had stated in its judgment and, therefore, the Government rightly took the view that the Public Service Commission could not do that.
8. ' This matter has been pending in this Court for a long time. It came up for hearing on the last occasion on the 1st April 1975, when a telegram was received from the petitioner saying that it should be heard at Karachi and if that was not possible, the presence of the petitioner should be excused, and the matter decided on merits.
9. ' An order was recorded on that date saying that the matter cannot be heard at Karachi, because, after the shifting of the Court to Rawalpindi, only petitions could be heard at Circuits. The matter was, accordingly, adjourned to a fresh date to enable the petitioner to attend the hearing. The petitioner was given duo intimation of this fact and the fresh date by registered post. He has again not appeared. In the circumstances, even though the learned counsel for the respondents has pointed out that the matter has now become infructuous, as the petitioner has since been compulsorily retired with effect from the 12th March 1972, under Martial Law Regulation No, 114 of 1972, promulgated on the 10th March 1972, we have as the question of contempt has been raised, examined the case on its merits and have come to the conclusion that even on merits this petition deserves to be dismissed.
10. ' The passage at page 52 of the reported judgment, on which the petitioner has relied, reads thus:- "Thus the first and the third appellants in Civil Appeal No, 44 of 1967 were actually recruited on the basis of the results of the C. S. S. Examination held in January 1950. They had not only completed their period of probation but had also successfully passed their departmental examination before they were actually certified as fit for promotion to class I on 18-11-1957."
11. ' On the basis of this observation, the petitioner claims that his seniority has to rank from 18-11-57 but this passage has to be read not torn out of its context but along with the rest of the judgment.
12. ' In this connection it has also to be pointed out that earlier at page 51 of the reports this Court observed:- "The fact that in the letter of the 18th November 1957, the Public Service Commission only provisionally certified certain persons and required them to fulfil some other conditions is indicative of the fact that the Public Service Commission took the service record of the persons into consideration as well. The cases of the persons so provisionally certified were to be referred back to the Commission after they had fulfilled the conditions obviously for final certification. The certification could not, therefore, relate back to the date of the provisional certification for the purpose of rule 1 (f) (iii) If the Commission could not certify with retrospective effect, as has already been held by this Court in the case of Maqbool Ilahi (Civil Appeal No, 35 of 1969), it could not indirectly achieve the same purpose by making a provisional certificate and leaving it to the Department to treat the persons as certified with effect from the date of the provisional certification upon the fulfillment of the prescribed conditions on a later date. Neither the Public Service Commission could certify with retrospective effect nor could the Government go behind the date of the final and confirmed certification."
13. ' Again at page 52 of the report this Court observed :- "The facts concerning the individual appellants are not relevant for the purposes of the present appeals, for in the case of promotees under rule 1 (1) (iii) the relevant date is the date of final certification subject, of course, to the qualification that the Public Service Commission has no authority to certify with retrospective effect. So far as the direct recruits are concerned, it is for the Government to first fix the dates with effect from which they are to be confirmed and after this has been done their seniority vis-a-vis the promotees of that year is to be fixed in accordance with the above principle. Confirmation, as I have already stated, Is in the executive discretion of the Government. It is for the Government, therefore, to decide as to whether it will confirm them, if so, from which date. If the date fixed is the date of their original appointment they will not be junior to the promotees certified on 18-11-1957. If, however, the date fixed falls in the year 1957 or any subsequent year then they will be placed as junior to promotees certified in 1957. It is not for the Courts to lay down any rule with regard to the confirmation of officers. This has of necessity to depend upon various considerations of which the employer alone can be the best judge."
14. ' Reading all these passages together, it appears to us that the Department has taken the cue from the judgment of this Court and confirmed the direct recruits from the dates of their initial entry into service and thus made them senior to those certified after that year.
15. So far as the petitioner's certification is concerned, it is clear that the certification granted by the Public Service Commission on 18-11-57 by itsl letter No, F. 2/69/56-S-H was only a provisional certification. The final certification was made on the 23rd July 1958, by the Public Service Com- mission, vide its letter No, 59(18)-AIT/54 and this order was communicated to the Deputy Secretory, Government of Pakistan, Ministery of finance, by the Public Service Commission's letter No, F.
16. 2/30/58-S, dated 23rd September 1958.
17. ' In this letter, the Commission, however, added the following paragraph:- "The Commission also agree that the above officers should count their seniority w. e. f. 18-11-57, 1 e., the date of Commission's letter approving their provisional promotion."
18. ' This, as pointed out in the judgment of this Court in Civil Appeal No, 44 of 1969, the Commission clearly could not do and if the Government has treated this recommendation as being in excess of the jurisdication of the Commission then it cannot be said that the Government has acted wrongly.
19. ' The net result, therefore, is that at the worst there is a difference of opinion as to the interpretation of the judgment of this Court in Civil Appeal No, 44 of 1969 and it cannot be said, in this view of the matter, that the respondents have been guilty of any contumacious or deliberate disregard of the judgment of this Court nor have we been able to discover anything, which would indicate that the respondents were manipulating to by-pass the judgment of this Court.
20. ' In this view of the matter not only has this petition become infructuous but it also deserves to be dismissed on merits. It is, accordingly, dismissed but there will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.