1. ' In the comments submitted by the respondent it has been stated in para. 3 that the pension sanctioning authority sanctioned the pension of the petitioner after having received 'No Demand Certificate' from the concerned quarters; that it was brought to the notice of the authority that the petitioner was involved in a matter relating to financial loss; that in the meeting of Public Account Committee held on 11-4-1995 direction was issued to the department that an inquiry to probe into fictitious billing of work and payment against the same be held within three months and that inquiry was completed and the matter had to be placed before the Public Accounts Committee for consideration in the next meeting for final decision.
2. The learned A.A.-G. Has raised a preliminary objection that the petitioner being a civil servant (retired) can file an appeal before the Punjab Service Tribunal for redress of his grievance and that the Constitutional petition is not maintainable. In reply the petitioner's learned counsel has placed reliance on an unreported judgment passed by my learned brother Faqir Muhammad Khokhar, J. In Writ Petition No, 2569/BWP on 5-11-1997 in which disciplinary action initiated against a retired civil servant was challenged through a Constitutional petition which was allowed on merits declaring the disciplinary proceedings to be without lawful authority and of no legal effect. The objection raised by the learned A.A.-G. Appears to carry weight. The expression ' civil servant' has been defined under seciton 2(b) of the Punjab Service Tribunals Act, 1974 as under:-- 2(b) "Civil servant" means a person who is or who has been member of a civil service of the Province or holds or has held a civil post in connection with the affairs of the Province but does not include ---
(i) a person who is or who has been on deputation to the province from the Federation or any other Province or authority;
(ii) a person who is or has been employed on contract, or on work-charged basis, or who is or has been paid from contingencies; or
(iii) a person who is or has been a worker or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923).
3. It clearly shows that a person who has been a member of civil service of the Province or who had held a civil post in connection with the affairs of the province was ordered by the definition. Thus, all civil servants who have retired, dismissed or removed from service can agitate their grievance relating to any of the terms and conditions of their service before the Tribunal in accordance with the provisions of section 4 of the Act. The judgment in the unreported case (W.P. 2569 of 1997/BWP) relied upon by the petitioner's learned counsel is distinguishable because it is relatable purely to disciplinary proceedings initiated against a retired civil servant and not in respect of a final order passed by a departmental authority as contemplated under section 4 of the Act. Therefore, it was observed in the judgment that a retired civil servant ceased to be in service of the Government and was no longer a civil servant for the purpose of initiating disciplinary proceedings against him under the Civil Servants (Efficiency and Discipline) Rules, 1975. The Government instructions dated 7-9-1992 referred to in para. 6 of the judgment are relevant for the limited purposes of disciplinary proceedings qua a retired civil servant and cannot be pressed against the express provisions of the Act, where under a retired civil servant can competently file an appeal before the Tribunal.
2. ' For the foregoing reasons the writ petition fails and is dismissed in limine as being incompetent.
3. Petition dismissed.
4. 1998 PLC (C.S.) 1425 [Supreme Court of Pakistan] Present: Muhammad Haleem, C.J., Shafiur Rahman, Zaffar Hussain Mirza and Ali Hussain Qazilbash, JJ ESTABLISHMENT SECRETARY TO THE GOVERNMENT OF PAKISTAN versus S.A.M. WAHIDI, DEPUTY SOLICITOR, LAW DIVISION, ISLAMABAD and others Civil Appeal No, 670 of 1984, decided on 13th October, 1987.
5. (Against the judgment and order of Federal Service Tribunal, Islamabad, dated 20-12-1983 in Appeal No,30(R) of 1982).
(a) Civil Servants Act (LXXI of 1973)--- ----S. 8---Constitution of Pakistan (1973), Art. 212(3)---Seniority---Leave to appeal was granted by Supreme Court to examine whether in allowing seniority to civil servant as Deputy Secretary, the Service T-"-anal had correctly applied the law. [p. 1425] A
(b) Civil Servants Act (LXXI of 1973)-- ----S. 8---Seniority---Right to claim seniority from a date earlier to formal appointment as Deputy Secretary of a person, who had done continuous officiation as Deputy Secretary---Person can be given the credit of seniority without having officiated for a single day as Deputy Secretary if he had done so in a post in Grade-19 or its equivalent. [p. 1430] B Sajjad Ahmed Sipra, Deputy Attorney- General and M.A. Siddiqui, Advocate-on-Record for Appellant.
6. Abdul Hakeem Khan, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No, 1.
7. Date of hearing: 13th October, 1987.
8. ' SHAFIUR RAHMAN, .1.---Leave to appeal was granted under Article 212(3) of the Constitution to the Establishment Secretary, Government of Pakistan, to examine whether in allowing the respondent, seniority as Deputy Secretary from 1-11-1974 instead of 24-10-1978 the Tribunal had correctly applied the law.
9. ' The respondent belonged to the Office Management Group and was posted as Section Officer in the Secretariat. In the year 1973 a temporary post was created in the Ministry of Law and Parliamentary Affairs, as it was then called, of Officer on Special Duty with the status of a Deputy Secretary. A proposal was sent in September, 1974 by the Secretary Law Division recommending that the respondent be promoted as Deputy Solicitor, a post which had become vacant on account of promotion of the incumbent. By letter dated the 28th of September, 1974 the Establishment Division communicated the minutes of the meeting of the Central Selection Board held on the 24th of September, 1974 the operative part being as follows:-- "The Board observed that Mr. S.A.M. Wahidi was basically a Section Officer and normally all the Section Officers possessing law degrees and having legal experience should be considered for the post of Deputy Solicitor, in the Law Division. The Law Secretary however stated that only Mr. S.A.M.
10. Wahidi had the requisite experience and no other Section Offer would fit into the job. The Board accordingly cleared. Mr. S.A.M. Wahidi for appointment as Deputy Solicitor in the Law Division in Grade-18, plus a special pat)/ of Rs,440 per month."
11. ' The Establishment Secretary further informed the Law Secretary on the 31st of October, 1974 in the following words:-- "Your presumption that Mr. Wahidi having already been cleared by the Central Selection Board for the post of Deputy Solicitor in Grade-18 plus a Special Pay of Rs,440 will not need another clearance for appointment to a related post in the equivalent grade is confirmed."
12. ' On 24th of October, 1978 the respondent was appointed to officiate as a Deputy Secretary and the notification is couched in the words as hereunder:-- ' Mr. S.A.M. Wahidi, a Grade-I8 Section Officer of the Office Management Group, presently posted as Deputy Solicitor, Law Division, is appointed to officiate as Deputy Secretary to the Federal Government, with immediate effect and until further orders.
13. ' His services will, however, continue to remain at the disposal for he Law Division, for appointment in his own grade (Grade-19), for t'he time being."
14. ' A provisional seniority list of the Deputy Secretaries in the Secretariat Group which was said to be a revised gradewise seniority list of Secretariat Group was issued on the 17th of August, 1981. The respondent had been assigned seniority from October, 1978 instead of 1-11-1974 when he took over against a Grade-19 post of Deputy Solicitor. After submitting a representation and waiting for the required period, the respondent approached the Tribunal with his grievance.
15. ' In resisting the appeal before the Tribunal, the position taken up by the appellant was that against the provisional seniority list an appeal was not competent as there was no final order. On merits it was contended that the promotion had to. Be against the post reserved for promotion and not an ex-cadre post and the posting enjoyed by the respondent from 1-11-1974 to October, 1978 was on an ex-cadre post and did not qualify for the purposes of seniority in the cadre or group of Deputy Secretaries.
16. ' The Tribunal rejected the objection with regard to the competency of the appeal by observing as follows:-- "The impugned seniority list is not the first gradation list required to be prepared as provisional under the instructions of the Establishment Division but such a provisional grade wise seniority list of the concerned group was circulated by the Establishment Division vide Letter No,2/4/1975/A-VI, dated 2-10-1975. In fact yet another gradation list was issued in June, 1976, after the reconstitution of the group. Therefore, by no stretch of imagination the impugned list can be considered as provisional. It was admitted by the representative of the Establishment Division that the impugned list is in vogue and is being, acted upon for the purpose of promotion etc. It appears to us that the learned Deputy Attorney-General had not been properly briefed on facts as he was not even aware of the fact that the lists of 1976 and 1981 were being acted upon but also had been drastically changed twice first in 1979 and then in 1980--without even circulating them and promotions had been made on the basis of those modified lists which had not seen the light of the day. We could notice that the learned Deputy Attorney-General was taken aback when these facts came to surface during the arguments and had to concede in most polite and tactful words that the action of the Establishment Division was improper. At any rate the seniority of the appellant has been finally determined by the Establishment Division vide the impugned list which is now being acted upon and as stated above he has exhausted the departmental remedy as well before filing the present appeal."
17. ' As regards the merits of the case, the Tribunal found as hereunder:-- "During the course of hearing Mr. A.H. Zuberi, Joint Secretary representing the Establishment Division conceded at the Bar that if this Tribunal came to the conclusion that the posts of Officer on Special Duty-Deputy Solicitor/Deputy Secretary carrying pay in Grade-18 or that the posts of Officer on Special Duty and Deputy Solicitor held by the appellant on his promotion were in the same grade as carried by the Deputy Secretary to the Federal Government then the appellant was entitled to count seniority from 1-11-1974... .. We hold that the appellant is entitled to count his seniority in the grade of Deputy Secretary in the Secretariat Group with all consequential benefits with effect from 1-11-1974 the date on which he was appointed as Officer on Special Duty (Adaptation) and to be more specific that his name shall be placed in the gradation list of 1981 just after the name of Syed Mohibullah Shah (Serial No,127 of the list). This will of course be further subject to the decision on the appeal of Mr.Ramizul Haq. It is further directed that lateral entrants are to count seniority with reference to the dates of their appointments as Deputy Secretaries and the respondents Nos.51, 57, 59, 61, 62, 64, 74, 80, 83, 88 to 96, 98, 99, 105, 107, 109 to 111 and 113 (shown at Serial Nos. 55, 61, 63, 65, 66, 68, 79, 85, 88, 93, to 101, 103, 104, 110, 112, 114 to 116 and 118 respectively of the gradation list) who are all lateral entrants and were appointed as Deputy Secretaries after 1-11-1974 are declared junior to the appellant."
18. ' Mr. Abdul Hakeem Khan, the learned counsel for the respondent, raised a preliminary objection to the competence of this appeal His contention was that the appellant is shown to be the Establishment Secretary to the Government of Pakistan and is being represented by the Deputy Attorney-General. The Power of Attorney in favour of the Advocate-on Record has been executed by the Deputy Secretary, Establishment Division and not be the Establishment Secretary. Therefore, the appeal has been incompetently filed.
19. ' The factual part of the objection of the learned counsel for the respondent is correct. The Deputy Attorney-General has explained that under the Rules of Business (Rule 7) all contracts instruments etc. Are required to be executed in the name of the President and the orders of the President can be authenticated by any of the functionaries down to the level of the Section Officer. On this principle it is contended that the Establishment Secretary could act through the Deputy Secretary.
20. ' From the record we find that the respondent himself impleaded Establishment Secretary, Government of Pakistan, as a respondent in the case and not the Government of Pakistan as required under Article 174 of the Constitution. Section 5 of the Service Tribunal Act, 1973 provides as hereunder:-- "Power of Tribunals.---(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of:--
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) issuing commission for the examination for witnesses and documents ' Order XXVII, Rules 7 and 8 of the Civil Procedure Code deal with a situation where a public officer is made a defendant and the Government undertakes to defend the suit or proceedings against that public officer. It also provides that the Government Pleader upon being furnished with an authority to appear and answer the plaint shall apply to the Court and upon such application the Court shall cause a notice of his authority to be entered in the register of the civil suit. In the case before us, it is not disputed that the Government had undertaken the defense of the appeal in the Service Tribunal. That being the factual position, the Deputy Secretary could on behalf of the Government authorize the Advocate-on-Record to represent the Government and this technical objection would not for that reason hold ground.
21. ' As regards the merits of the case, theoretically the contention is correct that promotion on an ex- cadre post does not enure for the benefit of regular promotion in the cadre to which officer belongs and also that the date of regular promotion in the cadre to which officer belongs is the relevant date for reckoning his seniority. However, this general and theoretical proposition has got displaced by two factors peculiar to this case. The first is that the post on which he was promoted was a secretariat post. His promotion in the circumstances of the case was expressed by the Establishment Secretary to be as formal and regular as any. It was made clear by the Establishment Secretary that "Mr. Wahidi having already been cleared by the Central Selection Board for the post of Deputy Solicitor in Grade-18 plus a Special Pay of Rs,440 will not need another clearance for appointment to a related post in the equivalent grade is confirmed". Unlike a case of an ex-cadre promotion, the promotion made was allowed to enure. Secondly, while constituting the cadre of Deputy Secretaries in the Secretariat such a position was in fact visualized that officers from various other posts were being inducted into this cadre and the advancement earned by them before entering in the cadre of the Deputy Secretaries was in fact recognized. Rule 3 of the Secretariat Group Service Rules provides that appointment to the post of Deputy Secretary will be made by horizontal movement to Grade-18 officers of the Office Management Group and the Secretariat Group on the recommendations of the Central Selection Board. The respondent earned this promotion. As regards rule of seniority (Rule 8) it is provided that "seniority would be determined from the date of continuous regular affiliation as Deputy Secretary or any post in Grade-I9 whichever is earlier". The affiliation of the respondent was admittedly in a post in Grade- 19 or its equivalent. Therefore, a person can be given the credit of seniority without having officiated for a single day as a Deputy Secretary if he had done so in a post in Grade-19 or its equivalent.
22. These two distinguishing features in the case of the respondent fully made out his right to claim seniority from a date earlier to his formal appointment as Deputy Secretary.
23. ' Mr. Israrul Haq respondent No,9 has raised an objection with regard to certain observations made by the Service Tribunal with regard to the propriety and efficacy of the earlier seniority list. We do not consider it necessary to go into that question because these are not determinative of the controversy raised in the case and further Mr. Israrul Haq has not formally appealed or filed cross- objections against any finding given or relief granted or refused.
24. ' The judgment of the Tribunal is unexceptionable and the appeal is dismissed with costs.