RAJA BASHIR AHMAD KHAN (CHAIRMAN).---This appeal has been directed against the Notification No. SLG/6163-80, dated 28-11-1992 whereby accepting the review petition of respondent No. 2, respondent --Government declared that seniority list issued under Government Order No.SLG/4439-57/91, dated 2-11-1991 was not final and the original seniority of parties as Overseers would be final and on the basis of that seniority the case of promotion of Assistant Engineers be presented before Selection Board.
2. Briefly stated the facts are that appellant Mr. Muhammad Muskeen, appellant Mr. Sarfraz Ali and respondent No. 2 Mr. Muhammad Fazal joined the Department of Local Government as Overseers on 16-1-1968, 22-11-1968 and 1-7-1968 `respectively. Respondent No. 2 at the time of his entry in the service was simply a Matriculate without any diploma of Engineering whereas appellants though having the basic qualifications of Matriculation were equipped with the qualification of three years diploma of Engineering. Respondent-Government vide its order dated 2-11-1991 issued seniority list of the Assistant Engineers of Local Government Department wherein the appellants were placed at serial No.3 and 4 and respondent No. 2 was placed at serial No. 5. Respondent' No. 2 preferred a review petition before respondent No. 1 claiming that he be declared senior to appellants on the basis of his seniority as Overseer. The respondent-Government accepted the review petition and passed the following order on 28-11-1992:--
3. Respondents have denied the facts stated in the memorandum of appeal and have raised the objections that the appeal is time-barred; joint appeal is not maintainable and without availing the departmental remedy, this appeal is not competent before this Tribunal.
4. The learned counsel for the parties have addressed their respective arguments before this Tribunal. We have also gone through the record. It may be stated from the very outset that no arguments have come forth on behalf of respondents on the preliminary objections raised in the written objections. We, therefore, do not feel advised to express ourselves on these points.
5. The learned counsel for the appellants has argued that the appellants were promoted as Assistant Engineers on 24-11-1975 whereas respondent No.2 was promoted Assistant Engineer on 11- 4-1980. The respondent No. 2 failed to challenge the orders of the promotions of appellants and, therefore, he could not challenge the appointment of appellants as Assistant Engineers at a belated stage. Against this argument the learned counsel for the respondents submits that the promotion of appellants was purely temporary against the temporary post their promotions was never approved by Selection Board. The order of promotion against the rules was rightly withdrawn by the Government.
6. In order to appreciate the controversy between the parties, we feel it appropriate to give service history of the parties.
7. Appellant Muhammad Muskeen was appointed Overseer on 16-1-1968. He was promoted as Workcharge Assistant Engineer in Grade-17 and was posted as such at Mdzaffarabad on 24-11- 1975. His lien was kept on his original post of Overseer. The expenditure involved was to be met from the funds provided by `World Food Programme'. Under this programme five posts in Grade-17 were created and these posts were brought into reduction vide order dated 11-1-1978. Appellant Muhammad Muskeen was transferred as Assistant Engineer in the Department of `People Works Programme' and was adjusted against the vacant post of Mr. Nazer Hussain Gillani. It was also stated in this order that further necessary action shall be taken separately in the matter (No separate further necessary action appears to have been taken in this case). Appellant Muhammad Muskeen continued to perform his duties as Assistant Engineer in the Department at various places under the orders issued by the Government from time to time. Presently he is stationed at Rawlakot as Assistant Engineer Local Government. He has also been allowed benefits of Grade B-18 with effect from 1-12-1988 under move-over scheme. Syed Sarfraz Ali Shah appellant was initially appointed as Overseer on 22-11-1968. He was promoted as Workcharge Assistant Engineer in B-17 alongwith Muhammad Muskeen appellant under the same Government order and under the same conditions. His post was also retrenched and he was reverted to his original posts of Overseer on 11- 1-1978. He, however, filed a review application against the order of his reversion and which was accepted and following Government order was issued:-- Appellant Sarfraz Ali, thereafter continued to hold the Office of Assistant Engineer in Local Government Department and has served as such at different places under Government orders issued from time to time and presently performing his duties as Assistant Engineer in the District of Muzaffarabad. Respondent Muhammad Fazal was appointed Overseer with effect from 1-8-1967 by the Deputy Commissioner/Project Director, Development Programme, Mirpur. He was posted as Workcharge Engineer Incharge of `Takia Khawan' side of Khui Ruttah Nakial Project by order dated 14-9-1975 of Director-General, Local Government. This arrangement was purely temporary and terminable at any time without notice. The temporary posts funded by `World Food Programme' were retrenched and respondent Muhammad Fazal was also reverted to his original post of Overseer alongwith Syed Sarfraz Ali Shah etc. Under the Government order mentioned above.
Respondent Muhammad Fazal was temporarily promoted as Acting Assistant Engineer against the post vacated by Raja Sher Afzal, Assistant. Engineer at Mirpur on 19-4-1979. But by another Order No. Admin/18207-12/79, dated 2-9-1979 Mr. Muhammad Fazal was to act as Assistant Engineer from 15-5-1979 to 31-8-1979 and thereafter he was deemed to have been reverted to his original post of Overseer from 1-9-1979. He was, however, promoted on purely temporary basis and subject to recommendations of the Selection Board as Assistant Engineer against the post which became available on account of the promotion of Raja Sher Afzal Khan, as Executive Engineer vide Order No. Admin/3828-37. Dated 11-3-1980 issued by Services and General Administration Department. There was yet another Government Order No.2224-29/SLG/81, dated 6-5-1981 whereby the qualification of Diploma Engineering for promotion as Assistant Engineer was relaxed. The said order is reproduced below: --
8. The learned counsel for the appellant has argued that the appellants were qualified diploma- holder Engineers whereas respondent Muhammad Fazal was only a Matriculate and did not possess the required qualifications of Diploma Engineering and, therefore, he was not eligible to be promoted as Assistant Engineer and was rightly ignored when the promotion orders of appellants were passed. There is a lot of force in the arguments of the learned counsel. The perusal of the order relaxing the required qualifications of Diploma Engineering in respect of respondent No. 2 is a clear proof of the fact that this relaxation was declared necessary for service and promotion of respondent as Assistant Engineer. This order was given effect from the date of promotion of respondent as Assistant Engineer and the said date is 11-3-1980. The relaxation is not only in respect of his promotion as Assistant Engineer but also in respect of his service in the Department of Local Government. He, therefore, could not aspire to earn promotion as Assistant Engineer before the issuance of order dated 6-5-1981.
9. The impugned order was passed by the respondent-Government on the recommendations of Mr. Ali Asghar Awan, Revenue Secretary who observed as under: --
10. The learned Revenue Secretary although aware of order dated 6-5-1981 failed to realise that the orders in respect of appellants were passed on 24-11-1975 and they have somehow or other continued to perform their duties as Assistant Engineer whereas respondent No. 2 did not possess the required qualifications of diploma engineering and he was later on appointed as Assistant Engineer but the required qualifications had to be relaxed so as to regularise the promotion and service of respondent only from 11-3-1980. There was, therefore, no question of consideration and supersession of the respondent No. 2 as against appellants.
1l. Another very important factor was ignored by the Revenue Secretary and the respondent- Government. The promotion orders made in respect of appellants have been in operation since 24-11-1975 and have continuously been acted upon without any interruption. The learned Revenue Secretary has observed that appellants are not permanent Assistant Engineers even now because their promotions were being made against various Development Schemes temporarily and the matter of their promotion has not been sent to the Selection Board, therefore, the seniority list issued on 2-11-1991 cannot be considered as final. The perusal of the record shows that originally the promotions of appellants were ordered against the temporary posts created and funded under the `World Food Programme' but later on as the service history of the parties shows appellant Muhammad Miskeen as Assistant Engineer was adjusted against a vacant post of Assistant Engineer and appellant Sarfraz Ali on his representation was promoted against a permanent post from the date of his reversion as Assistant Engineer and both of them continue to hold permanent posts in the Department. Respondent Muhammad Fazal case stands on quite different footing from that' of appellants. Muhammad Fazal respondent did not possess the three years Diploma in Engineering and could not claim seniority with the appellants when they were promoted as Assistant Engineers. Respondent Muhammad Fazal could only claim seniority alongwith the other qualified Engineers when the order of relaxation of qualification was passed in 1981. There is abundance of pronouncements of different Courts including the Supreme Court of Pakistan that the rights which accrue to a civil servant by an appointment to a post and that appointment remaining operative for a number of years cannot be taken back from him. Appellants have been functioning as Assistant Engineers since 1975. It would be highly unjust and inequitable if they are deprived of their promotions and relegated to the position they held as Overseer in 1967. The decision of Service Tribunal Punjab in 1985 PLC (C.S.) page 133 in Syed Afzal Hussain Naqvi v. The Government of the Punjab and others may with advantage be referred wherein it was held.
"Now it is almost settled if an appointment has been made and it remained operative, then their rights which accrued to a particular civil servant cannot be taken back from him merely because the Departmental Authorities concerned had omitted to perform their duties which were cast upon them under the particular rules. Therefore, the appointment which has been made by the competent authority cannot be allowed to vitiate due to omission on the part of the Departmental Authorities concerned. Obviously the appellant was not at fault in this matter as he made a clean breast to declare his correct qualification at the time of his selection."
The learned Tribunal followed the following judgments of Supreme Court of Pakistan: -- "Shahbaz v. The Crown PLD 1955 FC 46; It.-Col. G.L. Bhattacharya v. The State PLD 1964 SC 503; Pakistan through The Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; and the State v. Muhammad Ismail 1980 SCMR 268 were relied upon in the judgment cited above."
12. The law declared by the Supreme Court of Pakistan and followed by the Punjab Service Tribunal is that when an order has been passed and implemented and remained in operation for a number of years it cannot be recalled by the Authority making it. Therefore, in view of the above-cited authorities it can safely be held that there is no justification on the part of respondent-Government to recall the order dated 24-11-1975 and relegate the appellants to their position of Overseers which they held as back as the year 1967.
13. The learned counsel for respondent has submitted that the promotion of appellants has not been approved by the Selection Board and, therefore, their promotion do not satisfy the requirements of law on this point. The learned counsel has referred 1990 PLC (C.S.) 598 Sardar Muhammad Ilyas Khan v. Azad Government and others wherein it was held that the appointments made otherwise than the provisions of Rule 17 of the Rules of Business 1971 would not be regarded as regular. The facts of the reported case are different from the case under discussion. Sardar Muhammad Ashraf Khan was transferred from the Department of Development and Planning to the Department of Electricity and he demanded the seniority from the date of his first appointment in the Planning Department or at least from the date of his transfer to the Electricity Department.
The appointment of Sardar Muhammad Ashraf Khan was to be made under the provision of Rule, 17 of Rules of Business of 1971 and his appointment being made in violation of the said rules was held irregular and he was not given any right of seniority to his rival officers in that case. In the reported case the parties did dispute the inter se seniority from very beginning whereas respondent No. 2 did not challenge the promotion orders of appellants. In the instant case the parties belong to the same Department. Appellants were promoted by competent Authority and have been serving the Department for the last about 25 years. If any lapse has been committed by the Department they cannot be made to suffer for departmental inefficiency. The law thus declared by the Hon'ble Supreme, Court does not in any way advance the case of respondent No. 2. The argument of learned counsel, therefore, stands repelled.
14. During the course of arguments it was submitted on behalf of respondent No. 2 that he did file an appeal against the order of his reversion dated 11-1-1978 but the same has not been disposed of so far. This has adversely affected the service rights of respondent No. 2. On the personal file of respondent No. 2 a photostat copy of the said appeal has been located which is reproduced below: -- From the perusal of contents of this appeal it appears that it was addressed to Secretary, Local Government and Rural Development. The order dated 11-1-1978 was passed by the Government and appeal could not lie against the order before the Secretary, Local Government. Respondent No. 2 could only file a review before the Government. Respondent No. 2 failed to avail this opportunity as provided under law. We, therefore, are not inclined to accept this submission of respondent.
15. In light of above discussion, we accept this appeal and set aside the impugned order. No order as to the costs.