HAMOODUR RAHMAN, J.-This certificated appeal is directed against the judgment and order of a Division Bench of the High Court of West Pakistan dismissing' the writ petition filed by the appellant herein for, inter alia, the fixation of his seniority in the cadre of P. C. S: (Executive Branch) of the Government of West Pakistan.
The appellant, who was a lawyer practicing at Ambala, was appointed by the then Government of Punjab on the 19th March, 1947, against one of the 55 temporary posts of Extra Assistant Commissioners in the Punjab Civil Service (Executive Branch) Cadre".
The terms and conditions of appointment, as set out in the letter offering the appointment addressed to the appellant clearly mentioned that (1) the period of appointment will be for two years, (2) no pension would be allowed for this period of service, and (3) the service would be terminable in the following circumstances :---
(1) by the Government without previous notice if they are satisfied on medical evidence that you are unfit and likely for a considerable period to continue unfit by reason of ill health for the discharge of your duties, provided always that the decision of Government that you are likely to continue unfit shall be conclusive and binding on you ;
(2) by the Government without previous notice if you are guilty of any insubordination, incompetence or other misconduct or of any breach or non-performance of any of the provisions of these present or of any rule pertaining to your service ;
(3) by two months notice in writing at any time during service either by you to Government or by the Government to you without cause assign--ed ; provided always that the Government may, in lieu of arty notice herein provided for, give you a sum equivalent to the amount of your pay for one month or shorter notice than two months if Government pays you a sum equal to the amount of your pay for the period for which such a notice falls short of two months.
Finally it was mentioned in the said letter that "it must be clearly understood that this temporary appointment will give you no right to permanent appointment in any capacity in the service of Government". The appellant accepted these conditions by his letter of the 24th of March, 1947, and was thereafter posted to Lahore as a temporary Extra Assistant Commissioner.
According to the Government, who alone have contested this appeal, these temporary posts were created by Government as a purely temporary measure for appointment of what is commonly called "lawyer Magistrates" to clear up accumulation of criminal work in the Province. These temporary posts did not constitute a permanent increase in the cadre of the P. C. S. (Executive Branch). These posts, though originally created only for a period of 2 years, were nevertheless continued from time to time, firstly by the order of the 18th of March, 1949, which extended the terms of 21 of the temporary posts of "lawyer Magistrates in the P. C. S. (Executive Branch) Cadre up to and including the 28th of February, 1950". Then again on the 27th of February, 1950, the Governor by an order sanctioned the retention of 9 of these temporary posts and continued the appointment of the incumbents thereof including the present appellant up to the 31st of October, 1950, on the same terms and conditions. The endorsement at the foot of this letter conveying the sanction to the Deputy Commissioners in the Districts stated that "it should be made-cie4 to them (9 persons whose posts were extended) that they will not get any further extension in any circumstance." Nevertheless, do the 24th of November, 1950, 7 out of the 9 persons mentioned in the earlier order were granted a further extension up to and including the 30th of June, 1951, but again on the same terms and conditions. The appellant was one of these fortunate seven.
Sometime in 1950, however, the appellant and some of the other persons appointed as such temporary Extra Assistant Commissioners in the P. C. S. (Executive Branch) waited on deputation on the Chief Adviser of the Province and pressed their claim for retention in service. The latter, it is said, pointed out to them that their request could not be acceded to, as Government had abolished direct nomination to the service and therefore, permanent posts in the cadre that now fell vacant could only be given to (1) candidates promoted from certain services and (2) candidates selected on the basis of an open competition. The Chief Adviser, therefore, offered the facility to the deputationist to qualify for inclusion in the permanent strength of the cadre by qualifying themselves in an open competition, for that was the only means by which they could be brought on the permanent strength of the cadre. The deputationist accepted this offer and appeared at the examination. Accordingly, on the 4th of June, 1951, the Government extended the services of the appellant until further orders, as by reason of his success in the competitive examination held in December, 1950, he was "likely to be brought on to the regular P. C. S. (Executive Branch) Cadre" before the 30th of June 1951.
As a result of this competitive examination the appellant and four others were ultimately selected on the 12th of June, 1951, and they were informed that their names had, therefore, "been entered in the register 'B' of accepted candidates for the P. C. S. (Executive Branch)." They were also told that their pay will be governed by the rates of pay rules of the Government and that the P. C. S. (Executive Branch) Rules, 1930, would govern the conditions of their appointment to the service. A certificate entitling them to appear at the departmental examination was also enclosed. The formal order of appointment was issued on the 4th of August 1951, which is to the following effect :- "The following candidates accepted for the P. C. S. (Executive Branch) on Register 'B' as Extra Assistant Commissioners on probation, are posted to the districts mentioned against their names :- NameDistrict to which posted.
1. M. Muhammad Nazir RizviLahore (Temporary Magistrate)
2. Sh. Muhammad SiddiqueLyallpur
3. M. Muhammad Hafeez UllahLahore
4. Sh. Abdul RaufLahore
5. Mr. Muhammad Anwar ShariqJhelum
6. Mr. A. P. GillLahore M. Muhammad Nazir Rizvi is appointed as Extra Assistant Commis--sioner on probation from the 1st July, 1951, and the others from the dates on which they take charge of their duties in their respective districts.
Those officers will undergo the following courses of training during the first 18 months of their service.
(a) Revenue training for 4 --months ;
(b) Training as Magistrate 3rd Class for 6 months ;
(c) Training as Magistrate 2nd Class for 6 months ;
(d) Treasury training for l --months.
M. Muhammad Nazir Rizvi and Mr. A. P. Gill will not require any training in Magisterial work as they are qualified to exercise 1st Class magisterial powers.
(Sd.) H. A. Majid, Chief Secretary to Govt. Punjab.
Subsequently on the 27th of September, 1951, his pay was fixed in the service at Ks. 450 per mensem with effect from the 1st of July, 1951, i. e., "the date on which he was appointed to the service in register 'B', although the pay that he was drawing whilst on the temporary cadre was Rs.
600 per mensem.
The appellant made various representations to Government for refixa--petition of his pay in accordance with the scale initially allowed to him in the temporary cadre and also for giving him seniority with effect from 11th April, 1947, i. e. The date of his first joining the temporary service. The Government, however, ultimately informed him on the 27th of July, 1957, that "he was not a member of the service prior to July, 1951, and accordingly he cannot have seniority from a date earlier than that."
The appellant then went up to the High Court by way of a petition under Article 170 of the late Constitution on the 18th of March, 1958. In the course of the hearing in the High Court the Government counsel made a statement at the Bar that the representation on the question of pay was receiving sympathetic consideration from Government and on this statement being made the appellant agreed not to press the questions of pay and pay scale. Thus the petition was argued only so far as it related to the proper fixation of seniority.
The High Court after an examination of the P. C. S. (Executive Branch) Rules, 193U, came to the conclusion that the appellant's appointment to one of the 55 temporary posts created in 1947 in fact was and was all along trusted by all concerned as a post outside the regular service or cadre to which the Punjab Civil Service (Executive Branch) Rules applied and, there--fore, the appellant could not be regarded as being to Government service when he joined the temporary post. The facility given to him of appearing at the competitive examination was a special indulgence and, therefore, the appellant was rightly treated as having joined the regular service after his name was placed on the register `B' for appointment to the service as a result of his success in the competitive examination. His seniority was, accordingly, rightly fixed from July, 1951.
On behalf of the appellant it is now contended that the High Court was wrong in taking the view that the temporary posts created in 1947, did not constitute an increase in the regular strength of the cadre. According to the learned counsel appearing on behalf of the appellant, if the competent rule making authority creates temporary posts, then he pro tanto also increase the strength of the cadre to that extent, even if no formal amendment is made to the rules. Reliance for this purpose is sought to be placed on rule 46 of the Civil Services (Classification, Control and Appeal) Rules. Rule 46 (1) which appears to be the only rule having any relevancy to the question before us is as follows :- "46(1) When in the opinion of the controlling authority special provisions inconsistent with any of these rules or of any rules made there under are required in respect of conditions of service, pay and allowances, pension, discipline and conduct with reference to any particular posts, or any of them, it shall be open to the controlling authority subject to the provisions of Rule 10, but notwithstanding anything otherwise contained in those rules to provide by agreement with the person appointed to such post for any of the matters in respect of which in the opinion of the controlling authority special provisions are required to be made, and to the extent to which such provisions are made in the agreement nothing in these rules or any rules made there under shall apply to any person so appointed in respect of any matter for which provision is made in the agreement Provided that in every agreement made in exercise of the power conferred by this rule by any controlling authority it shall further be provided that in respect of any matter in respect of which no provision has been made in the agreement the provisions of these rules or of rules made thereunder shall apply."
Evidently reliance is being placed on the proviso wherein it is said that in so far as no special terms have been set out in the agreement, the rule aplicable to such service shall apply. Even if this be so, then having regard to the terms mentioned in the original letter of appointment communicated to the appellant, it is clear that the intention was not to increase the strength of the permanent cadre but merely to make a temporary arrangement for a period of two years to meet a special situation created by the large accumulation of criminal work. This intention is abundantly manifest from the provision that for the period for which the posts were created no pension would be admissible and that either party, namely, the Government or the employee would be entitled by two months notice in writing to terminate the employment. This letter also categorically specified that the temporary appointment will give no right to permanent appointment in any capacity in the service of Government. Upon the words of this letter it is difficult to appreciate how it can be contended that the appointment in 1947 was an appointment in the service of Government, to which the ordinary incidents of Government service applied. If any of the Punjab Civil Service (Executive Branch) Rules became applicable to the appellant, they became applicable only in so far as they were so made applicable by the letter of the Govern--ment dated the 19th of March, 1947, and not by reason of the mere employment of the appellant.
Under the Punjab Civil Service (Executive Branch) Rules, 1930, "service" means "the Punjab Civil Service (Executive Branch". Rule 3 of the Rules fixes the strength of the cadre of Assistant Commissioners at 244. Rule 5 of the said Rules provides that persons shall be appointed to the said service from accepted candidates "whose names have been duly entered in accordance with these rules in one or other of the registers of accepted candidates to be maintained under these rules." Rule 6 mentions the various kinds of registers. Register B' is meant for persons "accepted as candidates on the results of a competitive examination." Rule 11 provided that the Governor may select for entry in Register `B' such number of candidates as had been reported by the Punjab and North-West Frontier Province Joint Public Service Commission to have qualified in the examina-- petition in the order in which they stand in the list of qualified examinees." Then finally rules 21 lays down as follows :- "21. The seniority of officers appointed to the Service shall, with effect from the 1st day of January, 1930, be determined in accordance with the order of their appointment to the Service Provided that,-
(a) if the order of appointment of any candidate is cancelled under the provisions of rule 20, and such candidate is subsequently appointed to the service, the date of his appointment to the service for purposes of this rule shall be the date of such subsequent appointment ; and
(b) if any officer appointed to the Service fails to qualify himself for substantive permanent appointment within the prescribed period of probation, the Governor of the Punjab may determine whether the date of appointment for the purpose of this rule shall be postponed by a period not exceeding the period by which such officer's substantive permanent appointment is delayed beyond the prescribed period of probation"
Rule 23 makes it incumbent that candidates on first appointment to the service shall remain on probation for a period of three years in the case of candidates who are selected from register `B' and that during such period of probation they shall undergo such training as the Government may direct including the revenue, settlement, judicial, treasury and general training. They have also, under rule 22, to pass within two years the departmental examinations from time to time prescribed for Extra Assistant Commissioners and it is only after they have completed the period of probation that under rule 25 they become qualified for substantive permanent appointment. Rule 26 fixes the pay scale.
It will be observed from the above that the procedure that was followed in the appointment of the appellant was the procedure laid down in these rules. After he competed in the open competitive examination his name was placed in register `B' and he was informed that he was to be on probation. He was also given a certificate entitling him to appear at the departmental examination and he was required to undergo revenue training and treasury training during the first 18 months of his service. His pay was also fixed according to the rules at Rs. 450 per mensem which was much less than the pay he was drawing whilst employed as a temporary Extra Assistant Commissioner.
It is, no doubt, true that there is no relationship between the mode of appointment and the fixation of seniority, but seniority cannot commence until a person has entered the service. In the present case, as we have already pointed out, the appellant had not entered the regular service by his first appointment in 1947, for, that was outside the regular cadre tons which the Punjab Civil Service (Executive Branch) Rules applied. It is also conceded on behalf of the appellant that the rules as to seniority did not apply to temporary officials. It is difficult, therefore, to appreciate how the rules as to seniority become applicable with retrospective effect as soon as the person is taken on the regular service.
The case of Pakistan v. A. P. Hassumani (PLD1962SC409) has no direct relevance in the present case, for, there the persons had all been inducted even into the emergency cadre as a result of a competitive examination and that ultimately with the concurrence of the Public Service Commission the permanent retention in Class I Service of all the persons on the emergency cadre of the Military Accounts Department had been approved and they were thus placed on the regular cadre of the Superior Service, Military Accounts. In these circumstances, the addition of the words "as temporary S. S. Os." in the order of the Government was held to have been an "unnecessary and mistaken addition. In the present case, the position is quite different. There was no decision ever to treat the temporarily appointed Extra Assistant Com--missioners as members of the regular cadre.
In fact, by each letter extending the period of the retention of the temporary strength the number was being progressively reduced. Thus although 55 were originally appointed, the first extension was granted only to 21. Then in the next extension only 9 were chosen for retention. In the third extension this number was reduced to 7 and finally to 1 only, namely, the appellant, because, he had in the meantime competed in the examination and was likely to be brought on the regular cadre.