MDHAMWAD KHORSHID KHAN (CHAIRMAN) -In the tentative Seniority List of Gazetted Officers (excepting the qualified Rangers from Pakistan Forest Institute) of the N.W. F. P. as it stood on 1-6- 1973 Mohammad Saadullah Khan was shown junior to Ghani-ur-Rehman, respondent No. 1, and his representation was turned down on 9-9-1974 by the Government. Aggrieved from the order Mohammad Saadullah Khan has come on appeal.
2. The appellant passed the competitive examination held by the West Pakistan Public Service Commission for the post of D. F. O. and after undergoing the necessary training and obtaining the University degree he was posted as D. F. O. on 4-10-1965. The respondent No. 1 was appointed as Forest Officer, Swat on 9-10-1964 by the then Ruler of Swat State. He too had undertaken the requisite training and obtained the degree from Peshawar University. In pursuance of the provisions of paras 3 and 4 of the Dir, Chitral and Swat (Administration) Regulation, 1969 a Committee was set up to prepare a Scheme for absorption of the employees of the former States of Dir, Chitral and Swat in the provincial service. The Committee prepared the scheme and on its basis the Governor, N.-W. F. P. passed an order vide Notifica--tion No. PS/CS-N.W. F. P-71/1-17 dated 1-1-1970. The employees of the said States were to be absorbed in the provincial service with effect from 1-7-1973. The Governor, N.-W. F. P. in consultation with the N.-W. F. P. Public Service Commission was pleased to grant a relaxation in age limit and method of recruitment in respect of Ghani-u1,- Rehman and Mian Gul Badshah, the employees of 8x-State of Swat, for their absorption in the Provincial Forest Department per endorsement dated 13-7-1972. The Governor per his order dated 17-11-1972 absorbed both the aforesaid officers as Assistant Conser--vators of Forest (PFS-I) fn the N.-W. F. P. Forest Department. A tentative Seniority List referred to above was published and the appellant was shown at Serial No. 9 while respondent No. 1 was shown at Serial No. 8. The appellant made a representation against the position allocated to him in the Seniority List but could not succeed and has brought his grievance before this Tribunal.
3. The learned counsel for the respondents raised a preliminary objection with regard to limitation and urged that the appeal was hopelessly time-barred in view of the fact that the impugned order was conveyed to the appellant vide Annexure B dated 9-9-1974 whereas the appeal was received in the office of the Tribunal on 9-12-1974: The appeal was to be preferred within 30 days of the communication of the impugned order as contemplated by section 4 of the N.W. F. P. Service Tribunals Act, The learned counsel for the appellant, on the other hand, contended that no doubt the appeal wag preferred more than 30 days after the communication of the impugned order to the appellant, the appeal could not be hit by the law of limitation for the reason that the impugned order was a void one and for it there could be no bar of limitation at all. According to him, the Dir.
Chitral and Swat (Administration) Regulation, 1969 (hereinafter called the Regulation) had not been validated by an Act of Parliament as required by Article 270 of the Constitution of Islamic Republic of Pakistan, 1973 and, as such, the Regulation was a piece of dead law and the proceedings taken by the authorities concerned there--under resulting in the impugned order were void and nullity in the eye of law. To support his contention that there can be no bar of limitation for challenging a void order he relied on PLD 1965 SC 68, PLD 1969 Lab. 1039, PLD 1970 Lab. 6, PLD 1974 Lab. 434 and PLD 1976 SC 258. The learned counsel for the respondents referred to the observations made in PLD 1974 B 129 wherein it is observed that question of limitation could not be Ignored even if impugned order turned to be a nullity and time starts running from the date of knowledge. His Lordship referred to a wealth of authorities for the above observation. As the determination of the question of limitation depends upon the validity or otherwise of the Regulation it would be proper to deal with the latter aspect of the matter before adjudicating upon the point of limitation.
4. The Regulation was made by the Administrator of Martial Law, Zone 'A', exercising the powers of the Governor of West Pakistan and all other powers enabling him in that behalf with the approval of the President on 15th August, 1969. It was envisaged by Article 281(t) of the Interim Constitution of the Islamic Republic of Pakistan, which came into force on 21st April, 1972 that all Proclamations, President's Orders, Martial Law Regulations. Martial Law Orders and all other laws made as from the 25th day of March, 1969 were declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court. A safeguard to the above mentioned enactments was provided by Article 270(1) of the Constitution of 193 and it reads as under:
270. Temporary validation of certain laws, etc.-(I) Parliament may by law made in the manner prescribed for legislation for a matter in Part I of the Federal Legislative List validate all Proclamations, President's Orders. Martial Law Regulations, Martial Law Orders and other laws made between the twenty-fifth day of March, one thousand nine hundred and sixty-nine, and the nineteenth day of December, one thousandnine hundred and seventy-one (both days inclusive).
In pursuance of the above Constitutional provision the Validation of Laws Act. 1975 (Act No. LXIII of 1975) was enacted and the laws mentioned in the Schedule were declared by the Parliament to have been validly made by competent authority. In the Schedule the Regulation finds a place at Serial No. 1 in the heading Regulations with reference to the Province of West Pakistan. It is manifest that by means of this Act the Regulation was a validated and it was wrong on the part of the learned counsel for the appellant to suggest that the Regulation had no force in the eye of law and the proceedings taken under the Regulation, resulting in the impugned action were void and nullity in law. The Regulation being a valid piece of legislation the rules framed and proceedings taken thereunder were equally valid.
5. The learned counsel for the appellant in the light of the observations made in Asma Jilani v.
Government of the Punjab (PLD 1972 SC 139) assailed the' validity of the Regulation. He contended that the Military Rule imposed upon the courtly by the Proclamation of Martial Law in 1969 having been declared illegal by the Supreme Court in the above case the Regulation could not be a piece of valid legislation as it was made by the Martial Law Administrator in exercise of the powers conferred upon him by the Chief Martial Law Administrator/President. It escaped his notice that the President's Order No. 3 of 1969 and Martial Law Regulation No. 78 of 1971 formed the subject -- matter of discussion in the said case and both the enactments were declared un Constitutional documents and not only invalid and illegitimate but also incapable of being sustained even on the ground of necessity. It was observed that these not being valid laws could not be recognized as sued by the Court and had to be struck down. It is pertinent to point out that the Regulation aimed at the ordinary orderly running of the State on the taking over of the States of Dir. Chitral and Swat and all acts, according to the observations made by their Lordships, required to be done for the ordinary orderly running of the State merited condonation. Secondly, the Regulation was validated by an Act, of Parliament in pursuance of the provisions of the Constitution referred to above. The Regulation being a valid piece of legislation the contention of the learned counsel for the appellant would not prevail.
6. Now adverting to the question of limitation it may be remarked that it was in pursuance of the provisions contained in clauses 3 and 4 of the Regulation that the Governor, N.-W. F. P. on receipt of the report submitted by the Committee appointed to prepare a Scheme for the absorption of the employees of the former States of Dir. Chitral and Swat in the Provincial Government cadres and services, passed an order on Ist January, 1971. Pars. 2 of the order pertains to the absorption of these employees with effect: from Ist July, 1970 whereas paras. 6 to 8 pertain to the determination of their seniority. The seniority of the appellant and respondent No. 1 has been fixed in the light of the aforesaid paras and it cannot be said that the proceedings taken under the Regulation and resulting in the impugned action were void or in violation of the law. In this view of the matter it is erroneous to suggest that there can be no bar of limitation with regard to the present appeal. It being so, the authorities referred to and relied upon by the learned counsel for the appellant would be of little assistance to him. It may be stated that the impugned order was communicated to the appellant per endorsement dated, 9-9-1974 and it must have reached him within a week. The impugned order was obviously communicated to the appellant more C than 2J months before the institution of the appeal. According to section 4 of the N: W. F. P. Service Tribunals Act, 1974 the appeal against the impugned order should have been filed within 30 days of its communication.
The, appeal was not preferred within 30 days of the communication of the impugned order to the appellant and, as such, it is barred by limitation. It is worth, mentioning that no application for condonation of delay in preferring the appeal beyond the period of limitation has been filed before us nor it was explained before us that there was sufficient cause for not preferring the appeal within the time prescribed by law. The learned counsel for the appellant candidly conceded that the appeal was not preferred within 30 days as required by law but vehemently urged that the impugned order being void, no question of the period of limitation for an appeal against it would arise, a plea which could not prevail and we hold that the appeal is liable to dismissal on the ground of limitation.
7. We need not recapitulate all the facts narrated above but would relate the relevant facts only.
The appellant was successful in the competitive examination held by the Public Service Commission for the post of D. F. O. and after undergoing the necessary training and obtaining University degree he was posted as D. F. O. on 4-10-1905. He has been working since then as D. F. O. and holding a Class I post. The respondent No. 1 was selected as Forest Officer, equivalent to Class I service of West Pakistan Forest Department, f. e., Deputy Conservator of Forests by the Ruler of Swat on 9-10-1964 vide Annexure 'A' of the respondent. He also undertook the requisite training, obtained the University degree and was appointed by the Ruler of Swat as Forest Officer in Swat State earlier than the date of appointment of the appellant as D. F. O. in the Provincial Service. The scales of pay of the D. F. O. in the Province and the Forest officer in Swat State were Rs. 450-5t!--1050/75-1350 and Rs. 325-25-650/30-900, respec--tively. In pursuance of para 2 of the Order made under the Regulation all the employees of the former States who were in service on 1-1-1971 and were not excluded from the scope of Scheme were absorbed in the Provincial Government cadres/services with effect from 1-7-1970. As regards the seniority of the State employees vis-a-vis the Provincial Government employees the principle had been laid down in para. 6 of the Order which reads as under:
6. For purposes of integration, the seniority of the States employees shall be determined with reference to the date of continuous appointment, substantive or otherwise, to a particular grade.
Services, bath before and after the date of integration will be taken into account. The seniority of the former employees of the States shall be fixed vis-a-vis the Provincial Government's employees on the same basis. In case two officers are bracketed together, owing to their appointment taking effect from the same data, the older official shall be given seniority over the other. The orders in this paragraph are subject to the provision that inter se seniority of officials belonging to the same integrating unit shall not be altered: It is clear that the seniority of the State employees was to be determined on the basis of continuous appointment, substantive or otherwise, and the period) of service both before and after the date of integration was to be taken into account. Their seniority vis-a-vis the Provincial Government employees was to be fixed on the same basis. The learned counsel for the appellant, however-- contended that respondent No. 1 was absorbed in the provincial service of I N.-W. F. P. on 1-7-1970 and his services in the State could not be taken into account for determining big seniority vis-a-vis the appellant who was in the provincial service since 4-10-1965. This contention, in our view, does not hold good and loses sight of the fact that according to para. 6 reproduced above the service of respondent No. 1 in the former State was also to be taken into account while fixing his seniority vis-a-vis the provincial Government employees. In this view of the matter respondent No. 1 shall, on account of length of service, be senior to the appellant.
8. The learned counsel for the appellant next contended that respondent No. I could not be absorbed in the Provincial Service because the method of recruitment for the poet of D. F. O. in the Provincial Service was through competitive examination conducted by the Public Service Commission and that for eligibility to appear in the said examination certain educational qualifications were required whereas respondent No. 1 neither appeared in the competitive examination nor he possessed the requisite qualifications and, as such, respondent No 1, according to him, could not be appointed to Class I post by the Provincial Government. This argument is equal fallacious Inasmuch as it is provided by rule 12 of the West Pakistan Pores; Service (Class I) Rules, 1965 that any of these rules may, for reasons to be recorded in writing, be relaxed in individual case if the Government is satisfied that the strict application of the rule would cause undue hardship to the) individual concerned. The Governor of N: W. F. P. vide Annexure 'D' of the respondent granted relaxation in age limit and method of recruitment in respect of respondent No. 1 and Mian Gul Badshah, the employees of Ex-State of Swat, for their absorption in the Provincial Forest Department. Both of them were absorbed in the N: W. F. P. Forest Department by the Governor in consultation with the N: W. F. P. Public Service Commission vide Annexure 'C' of the respondent. The relaxation having been made by the competent authority it was wrong to assert that the respondent No 1 could not be absorbed in the Provincial Government service. It was lastly contended by, the learned counsel for the appellant that according to pare: 6 of the Order the seniority of the state employees for the purpose of integration was to be determined with reference to the date of continuing appointment to a particular grade and that the pay scale of the appellant being Rs. 450-50-- 1,050/75-1,350 as against the lower pay scale of Rs. 325-25-650/30- 900 of respondent No. 1 in State Service, the appellant must be deemed senior to him. The leaned counsel for the appellant added that the grade had reference to the respective pay scales. We were not impressed by this argument ands are of the view that the grate refers to the statue of the respective post and not the scales of pay. This view also finds support from the fact that in the Schedule appended to the Order of Integration the post of Forest Officer of the a former State of Swat has been equated with the post of Assistant Conservator of Forests of the Provincial service.
Needless to say that both these posts were Clasf-1 posts. It will be seen that the equation of post was based on the principle of the class of service and not the pay scales.
9. As a result of the foregoing discussion the appeal fails and is dismissed with costs. The appellant shall pay Rs. 200 as costs to the respondents.