' The facts of the case are that the appellant joined service as Assistant Engineer, Rural Works Programme on 7-3-1969. In the seniority list of Executive Engineers issued on 10-7-1988, he is at Serial No, 1 while Raja Atta Ullah, (respondent No, 3) and Mian Muhammad Yousaf (respondent No, 4) are respectively at Serial Nos. 3 and 6. A post of S.E. Was created in the office of Director-General, LG&RD Department in 1989. According to the Punjab Local Government and Rural Development Service Rules, 1981 notified on 5-12-1981 the post of Superintending Engineer (BS-19) is to be filled up as follows:-- "By promotion on the basis of selection on merit from among the Executive Engineers in functional unit having 12 years experience in the Department, if none is available by selection then by transfer."
2. The case for filling up the post of S.E. Was considered by Provincial Selection Board in its meeting held on 23-9-1989 and the appellant was recommended by the Board for promotion as S.E. The Chief Minister approved the recommendation of the Board on 21-1-1990. The approval of the promotion of the appellant was conveyed by SGA&I Department to Secretary, LG&RD Department (respondent No, 1) on 23-1-1990.
' Consequently, the notification of promotion of the appellant as Superintending Engineer with effect from 23-9-1989 was issued by respondent No, 1 on 3-2-1990. The said notification was also notified in the Punjab Gazette dated 7-2-1990. The appellant was at that time working as Executive Engineer, LG&RD Department, Faisalabad. Before he could join the post on promotion, the following directive dated 3-2-1990 from the Chief Minister was received by respondent No, 1:-- "Minutes of the Provincial Selection Board regarding the promotion of Mr. Shabbir Ahmad Chugtai, XEN, Local Government alongwith others were approved by the Chief Minister and the same were returned to the Department. It has been brought to the notice of the Chief Minister that Mr. Shabbir Ahmad Chugtai has been wrongly promoted as S.E. And as such his case may be separately submitted for the information/orders of the Chief Minister within two days. Meanwhile his notification regarding promotion to the next grade may please be withheld."
3. Consequently, another Notification dated 3-2-1990 was issued by respondent No,1 withdrawing the earlier notification bearing the same number and date. In pursuance of the abovementioned directive dated 3-2-1990, respondent No,1 submitted a summary dated 7-2-1990 to the Chief Minister, through the Secretary, Services, SGA&I Department incorporating his views regarding the promotion of the appellant that the said promotion was based on the decision taken by the Provincial Selection Board. Secretary Services recorded his note dated 8-2-1990 on the summary and inter alia stated that the recommendations of the Board in favour of the appellant were based on merits of the case and in accordance with the criteria prescribed under the relevant rules. On this summary, the following orders of the Chief Minister were recorded on 19-2-1990:-- "Chief Minister has seen and observed that since the aggrieved party has filed a writ petition in the Lahore High Court, we may await the final verdict of the Court."
4. The position about the writ petition filed in the Lahore, High Court by the parties is summed up as follows:--
(i) Writ Petition No,708 of 1990 was filed by respondent No,3 requesting for declaring the promotion of the appellant as unlawful. This petition was disposed of on 23-4-1994, as having become infructuous in view of the cancellation of the order of promotion of the appellant.
(ii) Writ Petition No,5367 of 1990 was filed by the appellant against the withdrawal of the notification of his promotion. This petition was
(iii) Writ Petition No,7235 of 1990 for quo warranto was filed by one, Muhammad Akram against the appellant. This was dismissed in limited on 26-4-1994.
' Meanwhile respondent No,3 was ordered to look after the work of the post of S.E. In addition to his own duties, under order dated 21-8-1993. After the disposal of petition a direction was issued by the Chief Secretary to respondent No,1 on 31-5-1994 that the appellant should be promoted as Superintending Engineer in pursuance of the approval of the recommendation of the Provincial Selection Board by the competent Authority conveyed on 23-1-1990. It was stated in this direction that the litigation against the appellant had come to an end and the said promotion was in order.
A compliance report was also asked to be submitted to the Chief Secretary. These orders were not complied with. On the other hand, the following directives were issued by the Chief Minister on the dates shown against each:-- 16-7-1993 "In supersession of previous orders, Chief Minister has been pleased to approve the promotion of Mian Muhammad Yousaf, Executive Engineer, LG&RD, Lahore Division as S.E. And his posting as S.E., at Lahore in relaxation of rules/procedure.
2. Further necessary action may kindly be taken accordingly." 18-5-1994 "Chief Minister has been pleased to approve the revalidation of directive bearing No, US(Dev) CMS- OT-176/93-123779, dated 16-7-1993 issued in favor of Mian Muhammad Yousaf, Executive Engineer, LG&RD Department on the subject (copy enclosed).
2. Further necessary action may kindly be taken accordingly." 28-7-1994 "Chief Minister has been pleased to approve the implementation of this Secretariat's order No, US(Dev)CMS-OT-176/93-123779, dated 16-7-1993 and the revalidation orders No,SO-II-CMS- OT176/94-6462-33207, dated 18-5-1994.
2. He has desired that Main Muhammad Yousaf, XEN. LG&RD, Rawalpindi be posted as S.E. LG&RD with immediate effect and a report may be sent to this office within seven days. Chief Minister has rejected the current charge for Raja Atta Ullah.
3. These orders are with reference to orders of the Lahore High Court, Lahore dated 26-4-1994.
4. Further necessary action may kindly be taken accordingly." 26-3-1995 "Chief Minister has seen and has desired that Chief Minister's earlier directive No,US(V)CMS-OT- 281/94-3429-39972, dated 297-1994 regarding promotion/posting of Main Muhammad Yousaf as S.E. May be implemented."
5. It would be seen that the directive referred to above are for posting/promoting of Mian Muhammad Yousaf (respondent No,4). It would be pertinent to point out that by the directive dated 28-7-1996, the Chief Minister had rejected the proposal for current charge appointment of Raja Atta Ullah (respondent No,3).
6. Subsequently, all the parties, the appellant, respondents Nos.3 and 4 filed writ petitions before the learned Lahore High Court. Finally, in Writ Petition No,14683/94, the learned Lahore High Court disposed of Writ Petitions Nos.9527 of 1994, 7517 of 1994 and 6865 of 1994 by a common order dated 9-3-1995, with the following order:- "Accordingly, all these petitions are disposed of in the terms that the Secretary, LG&RD Department is directed to examine the matter. So as to determine as to whether or not any person stands appointed against the post in question and if so, whether that appointment has been given effect to. If the Secretary comes to the conclusion that the post still remains vacant it shall be open to the competent Authority to make a fresh appointment."
7. Consequently, a summary was submitted on 21-3-1995 by respondent No,1 for information of the Chief Minister, on which the Chief Minister conveyed the directive dated 26-3-1995, to implement the earlier directive dated 28-7-1994 for the promotion/posting of respondent No,4 as S.E.
8. Meanwhile, another summary was submitted through the Chief Secretary on 15-4-1995 on which the following order was passed by the Chief Minister on 14-5-1995:- "I have studied this matter in detail. Arguments can be advanced on either side as noticeable lacunae exist. However, I would be prone to reiterate my orders as at Annex. A.
9. ' The order dated 18-5-1995 was ultimately issued by respondent No,1 whereby respondent No,4 Executive Engineer BS-18 Rawalpindi Division was transferred and posted as S.E. LG&RD, Department in his own pay and scale/rank relieving respondent No,3 of the additional charge. The instant appeal has been filed against the abovementioned order of the Chief Minister dated 14-5-1995 and the order dated 18-5-1995 passed by LG&RD department respondent No,1 with the prayer that the order of the Chief Minister dated 23-1-1990 approving the promotion of the appellant as Superintending Engineer and Notification dated 3-2-1992 issued by respondent No,1 promoting the appellant as S.E. (BS-19) in LG&RD Department with effect from 23-9-1989 may be restored.
10. It would be pertinent to state here that Mian Muhammad Yousaf respondent No, 4 also filed an Appeal No,247 of 1995 before this Tribunal in which he sought the implementation of the orders dated 16-7-1993, 18-5-1994, 28-7-1994 and 26-3-1995 (reproduced in para. 4) whereby the Chief Minister contentedly approved the promotion of Mian Muhammad Yousaf as S.E. By relaxing rules relating to appointment and conditions of service. It may be stated that Mian Muhammad Yousaf did not implead Mr.Shabbir Ahmad Chugtai or Raja Atta Ullah (the appellant and respondent No,3 respectively, in the instant appeal). Another Appeal No,486 of 1995 was filed before this Tribunal by Raja Atta Ullah on 18-6-1995, in which he impleaded Mian Muhammad Yousaf and Shabbir Ahmad Chugtai. Raja Atta Ullah in the said appeal prayed that he might be ordered to be posted as S.E.
Pending a decision by the Provincial Selection Board. The instant appeal was also filed on 18-6- 1995. The learned Chairman decided appeal No,247 of 1995 of Mian Muhammad Yousaf on 28-6- 1995, during the pendency of the two other aforementioned appeals filed by Shabbir Ahmad Chugtai and Raja Atta Ullah which were entrusted to me as a Bench by the learned Chairman on 22-6-1995. Raja Atta Ullah requested for withdrawal of his appeal No,486 of 1995; the same was, however, dismissed for non-prosecution on 21-3-1996. The instant appeal was still pending when the learned Chairman allowed the Appeal No,247 of 1995 filed by Mian Muhammad Yousaf with the observation that the appellant in the said appeal (Mian Muhammad Yousaf) was seeking only implementation of an order (directives of the Chief Minister) and the relief sought was of executory nature without much going into the substantial question of vires of those directives. The learned Chairman accordingly dismissed the application of Raja Atta Ullah in which he had asserted his seniority as Executive Engineer. The legal status of the directives was not determined and the question of seniority of the parties involved was also not considered. The appeal before this Tribunal filed by the appellant against Mian Muhammad Yousaf, on the other hand, were independently entertained and admitted for determining the important questions of the status and vires of the directives of the Chief Minister and seniority as well as promotion to the post of S.E.
Dealing with the prayer of Mian Muhammad Yousaf for implementation of the directives of the Chief inister, the learned Chairman concluded his order with the following observations:--- "Now coming to the main appeal, the respondent Secretary admitted that the appellant was promoted in his own pay and scale. It was held in PLD 1986 SC 349 that when promotion is made to a higher post, the incumbent has to be paid emoluments attaching to it for, it was thought to be unjust to get work of a higher post done without paying salary etc., fixed for it. That is why the expression "own pay and scale" was regarded at pages 146-147 Punjab ESTACODE as having no meaning or to be without any legal basis and indeed in consequential. The appellant shall, therefore, be paid the pay and scale of BS-19 with effect from 16-7-1993 when he was so promoted.
A formal notification to that effect may be issued.
' The appeal is allowed to the extent that the appellant after having been promoted to BS-19 is entitled to pay and scale prescribed for the post of S.E. A formal notification shall be issued by the respondent Secretary to that effect."
11. Feeling aggrieved by the said order dated 28-6-1995 Raja Atta Ullah and Shabbir Ahmad Chugtai both filed Civil Petitions Nos.828-L of 1995 and 865-L of 1995 before the learned Supreme Court and the leave to appeal has been granted. However, the learned Supreme Court by order dated 19-7-1995 suspended the operation of the finding/observation made by the learned Chairman in his order dated 28-6-1995 to the effect "the appellant after having been promoted to BS-19". Mian Muhammad Yousaf was relieved of the charge of the post of Superintending Engineer on 12-10-1995 and Mr. Aslam Ali Sabzwari, XEN, Public Health Engineering Department from outside the department was posted as S.E.
12. That main contentions of the appellant are as follows:--
(i) The appellant was duly promoted as S.E., BS-19 with effect from 23-9-1989 by the competent Authority and in the prescribed manner, the said order of promotion having been effectively made could not be reviewed or revised except on the ground of nullity, and since no such ground exists in the instant case, the order of promotion could not be withdrawn.
(ii) No notice was served on the appellant nor he was heard before the impugned orders were issued.
(iii) The order of promotion of the appellant was well-considered and made in accordance with the rules. As against this, the subsequent order dated 14-5-1995, passed in isolation, cannot override the original order dated 23-1-1990.
(iv) The appellant was promoted on the basis of recommendations of the Provincial Selection Board as per provisions of the rules whereas the case of respondent No, 4 was not considered by the Board.
(v) The Chief Minister is the appointing authority and can no doubt also relax the rules in accordance with the provisions of law, but in the instant case, the relaxation of rules, if any allowed in favour of respondent No, 4, cannot be legally sustained as the exercise of the power of relaxation is arbitrary and to the detriment of the appellant as neither any special reasons had been recorded in favour of respondent No, 4 nor any hardship is stated to have been removed.
(vi) that respondent No, 4 cannot be treated to have been promoted on out-of-turn basis either, as the requirement of law and rules had not been fulfilled for the purpose.
(vii) That provisions of relevant law and rules have been disregarded only to promote the individual interests of respondent No, 4 as is indicated by the repeated issuance of directives in his favour, rather than in public interest. This is violative of the law laid down by the superior Courts.
13. Respondent No, 3 made the following main points:--
(i) The promotion of the appellant even as XEN in 1977 is illegal on the ground that he holds the qualifications of B.Sc. (Town Planning) which is not an engineering qualification and, therefore, he could not be registered with the Pakistan Engineering. Council and as such he is ineligible to hold the post of an engineer and of XEN. In view of this, he is also not eligible to hold the post of S.E.
(ii) The post of S.E. Is lying vacant since 1989 and only stop-gap arrangements were made till the department prepared a working paper recommending respondent No, 3 to be promoted as he was also the senior most eligible XEN and further that no departmental inquiry was pending against him.
(iii) The appellant was proposed to be ignored for the reason of lack of qualifications as mentioned above as also because a departmental inquiry was pending against him.
(iv) That Writ Petition No, 5367 of 1990 filed by the appellant was dismissed as not maintainable, where after the appellant did not take any further measures to challenge the decision so that it attained finality. Writ Petition No, 7235 of 1990 filed against the appellant was disposed of on technical ground of lathes whereas the question of non-registration of the appellant with the Pakistan Engineering Council had been raised in the said writ petition.
(v) Respondent No, 3 being the senior most eligible XEN and having been posted as S.E. To lookafter the work of the said post vide order dated 21-8-1993 deserves to be promoted as such.
14. Respondent No, 4 raised the following main objections:-
(i) That the order dated 14-5-1995 passed by the Chief Minister, being the final order was challenged on 18-6-1995 i,e, 3 days after the prescribed limit had expired. Further the order dated 18-5-1995 passed by respondent No, I should have been appealed against before the higher authority i,e, Chief Secretary or Governor and since no such appeal was made, the instant appeal is not competent.
(ii) The learned Lahore High Court vide judgment dated 9-3-1995 directed respondent No, 1 to examine the matter so as to determine as to whether or not any person stood appointed as S.E.
This shows that the post was vacant and nobody including the appellant had been appointed thereto.
(iii) The appellant's promotion as XEN in 1977 was not in accordance with the law and he was not an Engineer registered with the Pakistan Engineering Council under the Pakistan Engineering Council Act, 1976 as he was B.Sc.(Town Planning) and, therefore, not eligible to hold any post of Engineer under the Government or local body. Since the first appointment was void ab initio further promotion as S.E. Would also be void.
(iv) The post of S.E is to be filled by promotion on the basis of selection on merit, and the appellant, therefore, cannot claim it as a promotion post.
(v) Provincial Selection Board merely recommended the selection of the appellant and this fact alone does not confer any right of promotion.
(vi) The Notification dated 3-2-1990 promoting the appellant as S.E. Did not attain finality for any purpose as the same had not been implemented as the appellant did not take the charge of the post nor he worked on the said post.
(vii) The Chief Minister being the executive head was competent to pass any order considered appropriate and the orders dated 14-5-1995 passed by him are quite clear, being order passed by the competent Authority.
(viii)The post of S.E. Being a selection post, it was open to the Chief Minister as competent Authority to consider any XEN of the functional unit suitable for the post.
(ix) The orders dated 3-2-1990 whereby the appellant was promoted, were withdrawn as the appellant did not possess the qualifications of an engineer and as such respondent No,1 was competent to recall the decision. On the other hand, the orders dated 14-5-1995 passed by the Chief Minister in favor of respondent No,4 were competent orders which could only be enforced by respondent No, 1.
(x) The Chief Minister is the appointing Authority and is also competent to relax the rules, which he has done and the impugned order is legal for all purpose.
15. In the written objection filed by respondents Nos. 1 and 2, it is stated that:--
(i) Respondent No,3 obtained orders dated 3-2-1990 from the Chief Minister, directing the withholding of the notification of promotion of the appellant which had been earlier approved by the Chief Minister However, the copy of the said order of the Chief Minister for respondent No,1 was received on 3-2-1990 and issued on the same date. The order of promotion and withdrawal of the same were both issued on 3-2-1990. Respondents Nos.1 and 2 have obviously confused the two orders mentioned as Annexure ' C' instead of Annexure G' in paras. 6 and 8 of their written objections. It was clarified during the course of the arguments that the annexures mentioned in the said paragraphs are actually Annexure 'G' meaning thereby that respondents Nos. 1 and 2 contended that the order of withdrawal of the notification of appointment of the appellant was received on 3-2-1990 and issued the same day.
(iii) It is admitted that no personal hearing was given to the appellant while withholding the order dated 23-1-1990 of the Chief Minister by which the appellant was approved for promotion as S.E.
(iv) It is admitted that the order dated 23-1-1990 conveying the promotion of the appellant was passed by the competent Authority in accordance with the rules.
16. The learned counsel for respondents Nos.3 and 4 raised the objections of maintainability of appeal on the grounds of res judicata and sub-judice. The objection of res judicata is based upon this Tribunal's judgment dated 28-6-1995 rendered by the learned Chairman in Appeal No,247 of 1995 whereby Mian Muhammad Yousaf's appeal had been accepted. In reply, the learned counsel for the appellant raised the following contentions to show that the instant appeal is not hit by res judicata: --
(i) In his aforesaid Appeal No,247 of 1995, Mian Muhammad Yousaf had not impleaded the present appellant (Mr. Shabbir Ahmad Chugtai) or respondent No,3 (Raja Atta Ullah) as respondents.
Therefore, the aforesaid judgment dated 28-6-1995 was not binding on the appellant. Reliance was placed on 1996 SCMR .1145.
(ii) As explained above, matters directly and substantially in issue in this appeal are quite different from those which were directly and substantially in issue in Main Muhammad Yousaf's Appeal No, 247 of 1995. The issues involved in the instant appeal are (a) the propriety of ignoring the approval of Provincial Selection Board especially after accepting the same (b) whether the regular promotion after it had been approved, ordered and notified by the competent Authority could be withdrawn and (c) the scope and the effect of the directives of the Chief Minister on the promotion of the appellant. On the other hand, the issue in the aforementioned Appeal No, 247 of 1995 was whether Mian Muhammad Yousaf, an XEN in BS-18, could be ordered to lookafter the work of the post of S.E. (BS-19) in his own pay and scale. The learned Chairman deciding the aforementioned Appeal No,247 of 1995 relied on judgment PLD 1986 SC 349. The appellant in the said case. Mr. Imdad Ali Khan represented against his prolonged ad hoc appointment in Grade-17 and on the promotion post in his own Grade-17. He claimed the following two reliefs:-
(a) ' Emoluments of the Grade-18 post of D.F.O. (with increments) so long as he performed the said duties and held the post' and
(b) 'regular promotion to the aforesaid post.'
' It was explained whereas his first claim of payment of emoluments with increments of the same post was accepted by the Hon'ble. Supreme Court, the second claim of regular promotion against the. Same post and for the same period was rejected on the ground that the said claim of regular promotion could not be proved to be in accordance with the recruitment rules applicable to him.
' It was observed as under:- "The transfer order on which the appellant civil servant relies is not in fact a promotion order though in substance it may be. It is not in accordance with the law prescribed for such promotion.
It is hot against the reserved post. It is only a transfer order in his own grade but to a post which was in Grade-18 i,e, the higher grade. Without observing the law the appellant civil servant could not claim regularization from the Service Tribunal of such a transfer/promotion. "
' The appellant, in the said case was; however, declared entitled to the scale and pay of the post.
' As pointed out by the learned counsel for the appellant, a distinction between the instant Appeal and the aforementioned Appeal No,247 of 1995 has in fact been drawn by the learned Chairman himself as is also clear from the excerpt quoted from the said judgment in para. 10 above.
Accordingly, I do not find any force in the plea of res judicata taken by the learned counsel for respondents Nos.3 and 4.
17. Since the aforementioned pending appeals before the Honorable Supreme Court arose out of the judgment dated 28-6-1995 in Appeal No,247 of 1995, their scope remains the same and as such the pendency of those appeals in a different matter does not bar the appellant's instant appeal for regular promotion.
18. Both respondents Nos.3 and 4 have challenged the appellant's eligibility for appointment as Executive Engineer in 1997 as well as his promotion as S.E. On the ground that he was not registered as a professional engineer with the Pakistan Engineering Council (reliance has been placed on 1992 PLC (C.S.) 637). In this connection, the learned counsel for the appellant had drawn attention to the minutes of the meeting of the Provincial Selection Board held on 23-9-1989 where under the Board considered this very question in the light of similar objections raised by the Pakistan Engineering Council itself and it was resolved that Punjab LG&RD Service Rules, 1981 did not prescribe any particular academic qualifications for the post of S.E. In the LG&RD Department and that under the said rules selection is to be made from amongst the Executive Engineers having 12 years service in the Department. The learned counsel in this connection also relied on the latest judgment of the learned Supreme Court reported as 1996 PLC (C.S.) 44 where under the following principle was laid down in connection with the powers of the Engineering Council and those of the Government Departments in matters of framing rules, regulating promotions of civil servants and employees of semi-Government bodies;- "In this regard we may point out that it is the domain of the Government concerned to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from one grade to another higher grade and whereas it is in the domain of the Pakistan Engineering Council to decide, as to whether a particular academic qualification can be equated with another academic qualification, but it has no power to say that the civil servants/employees holding particular academic qualifications cannot be promoted from a particular grade to a higher grade. The main object of the Act as pointed out by one of us (Ajmal Mian, and Saiduzzaman Siddiqui, CJ. (as he then was) in the above High Court judgment is to regulate the working of professional engineers and consulting engineers and not to regulate the qualifications or the working of the engineers department."
"A perusal of the above quoted section shows that the Pakistan Engineering Council is vested with the functions to regulate the persons qualified to practice as professional engineers and consulting engineers and not persons who are employed in the Government or semi-Government Organizations."
19. In the light of the above, the question regarding eligibility of the appellant for appointment as Executive Engineer in 1977 and promotion as S.E. Under the rules stands finally resolved, and no exception can be taken to his eligibility for appointment to the said post on account of his non- registration with the Pakistan Engineering Council. It is also settled that the appellant is the senior most eligible Executive Engineer. It was also pointed out in the working paper put up to the Provincial Selection Board, that at one stage the appellant was not recommended for promotion on account of a pending inquiry. However, the latest position was duly considered by the Board and it was observed that the appellant had been cleared of all the charges and the said inquiry had been dropped.
20. Respondent No, 4 also relied on the judgment dated 9-3-1995 wherein the learned Lahore High Court directed respondent No, 1 to determine whether the post of S.E. Is vacant or not. He argues that the post was held to be vacant and as such the appellant could not claim to have been promoted as S.E. On the basis of the recommendations of the Provincial Selection Board approval to which was given by the Chief Minister on 21-1-1990. In this connection a perusal of the said order of the learned Lahore High Court reproduced in para. 7 shows that the question of any person having been appointed to the post was to be determined by respondent No,1 and he was to make a fresh appointment only after determining the question whether any person stood appointed to the post of S.E. Or not and whether the said post was vacant or not. These questions, as we shall see, were to be determined in the light of the rules. Respondent No, 4 has also raised the plea that the appellant cannot claim promotion as a matter of right as the post of S.E. Is a selection post. The Board merely recommended the appellant and this fact alone does not confer any right as the competent Authority to make promotion is the Chief Minister who passed the order dated 14-5- 1995 in favor of respondent No, 4 whereas the appellant never held the post of S.E. Even as a result of Chief Minister's approval of his promotion as the orders were withdrawn by the Chief Minister who was competent to do so, and further that the Chief Minister being the appointing Authority is also competent to relax the rules which he did by passing the order on 14-5-1995 resulting in the issue of the order dated 18-5-1995 posting respondent No, 4 as S.E. In his own pay and scale/rank with immediate effect relieving respondent No, 3 of the additional charge. It now remains to be seen whether the said orders of the Chief Minister could be interpreted to affect the order dated 21- 1-1990 passed by him earlier approving the promotion of the appellant and the Notification dated 3-2-1990 promoting the appellant as S.E. From 23-9-1989.
21. The admitted position is that the appellant is the senior most Executive Engineer and as we have seen above, he is also eligible for promotion/selection, that the Provincial Selection Board, as the competent Selection Authority prescribed under the rules recommended him for promotion as S.E.
With effect from 23-9-1989, and the Chief Minister as the Authority competent to make appointment to the post of S.E. (BS-19) approved the recommendations of the Board on 21-1-1990 and the Notification dated 3-2-1990 for giving effect to the order of the competent Authority was issued. The appellant was at that time working as Executive Engineer at Faisalabad. Before he could join his assignment on promotion, another notification was issued bearing the same date as the original notification of his promotion i,e, 3-2-1990 (Annexure 'G') withdrawing the earlier notification. Original record was summoned and perused to see how the notification was issued withholding the promotion of the appellant. Copy of the directive issued from the Chief Minister's Secretariat (placed at Annexure 'C' page 28) is the true copy of the original available in the file of respondent No,
1. This directive bears 4 stamps of the offices of the Chief Minister's Secretariat and those of the respondent No, 1 bearing dates of 7-2-1990, 4-2-1990 and 6-2-1990. The directive is addressed to Secretary (Services) SGA&I Department with copy to Secretary, LG&RD Department (respondent No, 1). The file from the office of Secretary (Services) was called and perused. The directive was never received in the said office. This is also borne out by the fact that both the original as well as the copy of the directive were signed by the Secretary, LG&RD Department (respondent No, 1). The file was marked down to the Section on 7-2-1990. In the light of this, the impugned Notification dated 3-2-1990 could not have been issued on 3-2-1990 when the directive itself was received by the Section Officer (LG) at least five days later. It also shows that the date of issue of the directive has been wrongly shown as 3-2-1990 only to make it look as if it was issued on the same date when the original notification of promoting the appellant was issued, although the directive is shown to have been dispatched by the office of Chief Minister's Secretariat not earlier than 4-2-1990. Thus, it could not have been issued on 3-2-1996. This means that the Notification dated 3-2-1990 promoting the appellant remained in the field at least for five days when it was withdrawn deliberately by ante-dating the notification of withdrawal. Further, the Provincial Selection Board and its Chairman i,e, the Chief Secretary never received the directive of the Chief Minister for withdrawal of the Notification of promotion. The withdrawal thus seems to have been engineered in haste and by-passing the normal channel for dealing with the cases of promotion to posts in BS-19 i,e, the SGA&I Department. Respondent No, 1 has clearly admitted in the written objections that respondent No,3 obtained the impugned directive from the Chief Minister directing the withholding of the notification of promotion. Of the appellant. This has not been denied by respondent No,
3. The contention of the learned counsel for the appellant that the notification of withdrawal is mala fide is, therefore, not contradicted. The directive of the Chief Minister dated 3-2- 1990 for withdrawing the notification of promotion of the appellant could not be legally implemented for the reason that the promotion had already been notified. Consequently, it was only logical for the responding department to proceed in accordance with the rules pointing out to the Chief Minister the impracticability of withholding the notification. Since the Chief Minister had observed that according to his information the appellant had been wrongly promoted, the only course available to the department was to. Go into the details of the processing of the case of promotion of the appellant, and in case the promotion was found to have been wrongly made, the specific irregularity or wrong committed should have been identified. Coming to the particular directives issued by the Chief Minister from time to time in favour of respondent No, 4, reproduced in para. 5, it would be pertinent to point out that by the last order dated 14-5-1995 recorded on the summary submitted to him by the Chief Secretary Punjab, Chief Minister observed as under:- "I have studied this matter in detail. Arguments can be advanced on either side as noticeable lacunae exist. However, I would be prone to reiterate my orders as at Annexure A."
22. The above orders of the Chief Minister were passed on the summary submitted to him after the Lahore High Court disposed of the various petitions by common order dated 9-3-1995 reproduced in para.
7. It was also pointed out in the summary that the Chief Minister had desired to wait for the final verdict of the Court. Thus, the final order dated 14-5-1995 recorded by the Chief Minister on this case, referred to above, is to be seen in the light of his own orders for awaiting the decision of the Lahore High Court. According to that decision, as stated above, the entire question whether the post of S.E. Was filled or not was to be examined by respondent No, 1 . It was after such examination that a summary was submitted to the Chief Minister reiterating the earlier recommendations of the Provincial Selection Board and recommending the promotion of the appellant as S.E., but the Chief Minister passed the order dated 14-5-1996 as noted above, as a consequence of which the order dated 18-5-1995 was issued posting respondent No,4 as S.E. In his own pay and grade. The post of S.E. Was, therefore, not filled in the prescribed manner.
23. Although the Chief Minister in his order dated 14-5-1995 recorded on the summary himself indicated that the arguments could be advanced on either side, he reiterated his earlier orders whereby respondent No, 4 was to be promoted in relaxation of procedure and posted as S.E. The learned counsel for the appellant has argued that the directive of the Chief Minister for posting of respondent No, 4 as S.E. Was implemented by respondent No,1 . However, no orders were passed by respondent No, 1 for regular promotion of respondent No, 4 as the directive could not have been interpreted to mean regular promotion. The learned counsel for the appellant has also argued that the order dated 23-1-1990 passed by the Chief Minister was well-considered and made, in the prescribed manner whereas the impugned order dated 28-7-1994 in respect of respondent No, 4 was not passed in the prescribed manner. The Notification dated 3-2-1990 withdrawing the promotion notification of the appellant is bad in law as it did not disclose any reasons and was passed without notice to the appellant. The said impugned notification is also of a political nature as it was obtained in disregard of the channel of communication and through fabrication of record. The appellant's learned counsel relied on 1995 SCMR 650 to argue that the recommendations of the selection authority could not be rejected without giving any reasons and that the discretion cannot be exercised by an authority in an arbitrary manner and without regard to the recommendations of the selection authority. The main contention of respondent No, 4 is that the Chief Minister being competent Authority can relax the rules. As stated above, the directives of the Chief Minister were not based on any recommendations by any departmental authority let alone the prescribed selection authority i,e, the Provincial Selection Board. In fact summaries were submitted again and again to the Chief Minister suggesting that the recommendations of the Provincial Selection Board already approved by the Chief Minister and also acted upon should be allowed to be carried through. None of the agencies concerned with the processing of the case for filling up the post of S.E. Made recommendations in favour of respondent No: 4 whereas no such recommendations were made before the directives of the Chief Minister posting respondent No, 4 as S.E. Were issued or got issued. There is no doubt about the power vesting in the Chief Minister for relaxing the rules. This power, however, is subject to the condition that relaxation can be given only to remove a hardship and only up to the extent of removing such hardship, and above all without taking away the right of other civil servants guaranteed under the law and rules. It is a matter of record that the case of respondents Nos. 3 and 4 was not examined from this angle nor any of the directives of the Chief Minister sought to remove any hardship. On the other hand, the record shows that the directives issued by the Chief Minister in favour of respondent No, 4 were implemented in disregard of prescribed procedure and the rules. The learned Supreme Court had elaborated the points relating to the power of appointing authorities, the role of selection authorities and the appointments made on the recommendations of the selection authorities and those made independent of such recommendations. The learned Supreme Court in its judgment in Walayat Ali Meer's case reported as 1995 SCMR 650 elaborated the principles which are fully applicable to the instant case. In that case also, the appellant before the Supreme Court, though recommended by the relevant Selection Board was not promoted by the competent Authority and the Federal Service Tribunal dismissed his appeal on the ground that although the appellant was recommended by the Selection Board yet it was not approved by the competent Authority. The learned Supreme Court observed as under:- "The contention mat no employee has a vested right in promotion may be correct but where rules, regulations and policy have been framed for regulating appointment and promotion any breach or deviation for mala fide reasons or due to arbitrary act of the competent Authority the aggrieved person would be entitled to challenge it.
' Therefore, in the light of the above observation, the regulation providing for recommendation of the Promotion Board for promotion should have been taken into consideration which cannot be brushed aside lightly without due reason. Respondent No,2. Was inducted irregularly, the charge held by the appellant and respondent No,2 was interchanged even after the induction of respondent No 2 the promotion Board for the second time recommended the appellant for promotion, respondent No,2 was never recommended for promotion, and yet he was absorbed in Group-IX against a permanent vacancy. These facts go a long way to point out the illegalities, irregularities and breach of regulation without any just and reasonable ground leading to the conclusion that the impugned order of respondent No,1 was arbitrary, unfair and devoid of good faith ' The same judgment further lays down the following principle of law with regard to the exercise of discretion:- "The discretion is not to be exercised on whims, caprice and moods of the authorities. It is now well- settled the exercise of discretion is circumscribed by principles of justice and fairness. The authority exercising discretion should take into consideration and advance the aim and object of the enactment, rule or regulation under which it is authorized to act. It should not act in complete negation of the object of such law, rule, regulation or established policy otherwise it will not be fair, reasonable and just exercise of power. The precondition imposed for exercise of discretion should be honored and respected unless for valid reasons they have to be discarded."
24. The principles laid down in the above-quoted excerpt adequately take care of the contentions of respondents Nos.3 and 4 that the Chief Minister being the executive Authority could overrule the recommendation of the Board. In the case cited above, the recommendations of the Board were not accepted by the competent Authority, whereas in the instant case the appellant had been duly promoted for which notification had also been issued on the recommendations of the Selection Board which were duly approved by the competent Authority. As such the case of the appellant is even on stronger footing and the promotion already ordered was withdrawn in total disregard of the rules and without information and knowledge of the appellant.
25. The learned counsel for the appellant has pointed out that the posting of Mr. M. Aslam Sabzwari as S.E. Against this post is violative. Of the provisions of the Recruitment Rules reproduced in Para. 1, according to which the power of S.E. Is to be filled from among the persons in the relevant Functional Unit and the method of appointment by transfer is required to be resorted to only when a person fulfilling the requisite conditions of appointment is not available within the functional unit.
In the instant case, there was neither any occasion nor by action was taken resorting to the method of appointment by transfer as persons in the functional unit to which the appellant as well as respondents Nos. 3 and 4 belong were available, and the appellant had already been selected and promoted in accordance with the rules. Further, even in the event of non-availability of a suitable person within the Functional Unit, the method to appointment by transfer as prescribed in rule 9 of the Punjab Civil Servant (Appointment and Terms of Conditions of the Services) Rules, 1974 is to be followed for which neither there was any occasion nor in fact it was done. The ratio of judgment in the case reported as 1995 SCMR 1053 is fully applicable to the instant case; an extract from the said judgment of the Hon'ble Supreme Court is reproduced below:-- "The notification quite clearly lays down that the post of Director-General in the first instance is to be filled by promotion and resort to other methods of recruitment namely the direct appointment and induction of an outsider by transfer can only be made if no officer in the department is eligible and qualified for promotion. It is not the case of petitioner that the respondent was not eligible for promotion to the post of Director-General. That being so, was not open to the Government to induct any officer from outside by means of transfer without first considering the respondent for promotion to the post in question which admittedly was not done."
' The filling up of the post by posting of an officer from outside the functional unit of the LG&RD Department is, therefore, violate of the law and rules and has resulted in the infringement of the service rights of the appellant who was not only eligible but was also duly promoted as S.E. Under the rules.
26. The upshot of the above discussion is that the appellant, being eligible under the relevant rules was duly promoted as S.E. LG&RD Deptt. (BS-19) w,e,f, 23-9-1989 on the basis of the recommendations of the Provincial Selection Board, the competent selecting Authority under the rules, made in its meeting held on 23-9-1989 which were approved by the Chief Minister as competent authority on 21-1-1990 and conveyed through the U.O. Dated 23-1-1990 to the respondent No,1, and notified vide Notification dated 3-2-1990. The said promotion was admitted by respondent No,1 to have been made in the prescribed manner by the competent Authority. No case had been made out for infringement of any rule or for any irregularity in the aforesaid promotion of the appellant. Resultantly, the said promotion is held to be regular and made in accordance with the prescribed rules and manner. The impugned Notification purporting to have been issued on 3-2-1990 (Annexure 'G' page 33), by which the earlier notification of the same date promoting the appellant as S.E. Was withdrawn, is held to be illegal mala fide and void ab initio and having no legal effect. The appellant has been unlawfully prevented from entering upon the office of S.E. On promotion, without his fault. Accordingly, the appeal is allowed and the appellant is declared entitled to all back benefits including pay and allowances attached with the post of S.E.
LG&RD (BS-19) with effect from 23-9-1989 the date from which he was promoted as such. The requisite action shall be taken by respondent No, 1 forthwith. Parties are left to bear their own cost.