M. SALEEM CHAULHRY (CHMRMAN).-- This order disposes of two appeals i. e. No. 330/613 of 1965 filed by Mr. Muhammad Afzal Malik and Appeal No. 175/811 of 1.976 filed by Ch. Muhammad Arif and others as the said two appeals involve similar points of law and facts.
2. In the first part of the judgment we axe disposing of the former appeal i. e., No. 330/613 of 1975. In this case the appellants who are all Civil Judges have assailed the Notification dated 25-2-1975 of the Government of Punjab whereby respondents Nos. 2, ?, a and 5 who were also Civil Judges, have been promoted to officiate as Additional District and Sessions Judges in grade 18.
3. The appellants claim that in the seniority list of Civil Judges corrected up to 30th June, 1955, issued by the Service and General Administration Department's notification dated 5th July, 1975, and published in the Punjab Gazette of 9th August, 1975 they rank senior to respondents Nos. 3, 4 and 5 (hereinafter described as the contesting respondent). It is the appellants' case that while making the aforesaid promotions to the rank of Additional District Sessions Judge, the appellants have been left out of consideration for promotion to the said posts. This, it is claimed has resulted in the violation of the terms and condition3 of service of tire appellants which entitles them to prefer this appeal before this Tribunal.
4. The brief facts of the case are that in the year 1963, a number of practising lawyers with about 5 years' experience were recruited on an ad hoc basis to perform the duties of Civil Judges as a temporary measure. The contesting respondents in this case belong to this group of Civil Judges and they joined service as such on 29-6-63 except respondent No. 3 who joined on 1-7-63. By a notification of 1G-12-74, issued in the name of tire Governor of the Punjab, the respondents Nos, 2, 3, 4 and 5 alongwith 9 other members of the same category of Civil Judges, who were described in the said notifica--tion as ad hoc Civil Judges, and whose suitability for absorption on regular basis was said to have been determined, were deemed it) leave been appointed to the cadre of Civil Judge w. e. f. the date of issue of the aforementioned notification. By the same notification they were to count their seniority in the cadre of Civil Judges w. e. f t-1-1970. The said notification was expressly issued in pursuance of an earlier notification of the Punjab Government dated 28-2-1970 wherein was laid down a general policy of regularization of the appointment of such persons as were continuing or ad hoc basis in any service or post under the rule making authority of the Governor of West Pakistan any who fulfilled a number of conditions laid down in the said notification it was also laid down in the said notification that the persons whose appointment is regularized under the notification shall count their seniority in the service, grade cadre or post, to which they are regularly appointed w. e. f. 1-1-1970. We may also point out that the action of the Government in assigning the seniority to the respondents below the appellant has been assailed before us and is the subject-matter of a separate appeal which has also been heard and disposed of by us and according to our conclusions the seniority position as determined by the Government had to be maintained. Thus for the purposes of this appeal the seniority position as determined by the Departmental authority has to be assumed as correct.
5. The appellants on the other hand, were appointed to the P. C. S. (Judicial Brach) Service in the regular procedure prescribed under the relevant rules, entailing a competitive examination and recommendation by the Public Service Commission. The appellants were appointed to the said service on various dates falling between 1-3-66 and 4-11-67 and were also later confirmed. The appellants have been assigned their position in the seniority list corrected upto 30-E-75, and issued on 5-7-75, in accordance with their dates of appointment as Civil Judge under the relevant rules. The appellants are shown in the seniority list at Serial Nos. 11 to 48 with the exception of Serial Nos. 22, 41 and 47 (which persons have been impleaded as pro forma respondents Nos. 6, 7 and 8).
The group of contesting respondents who, as narrated above, have to count their seniority w. e. f 1- 1-1970 in terms of notification of 16-12-1974, have teen shown junior to the appellants at Serial Nos.
49 to 53. It is in the context of the aforementioned position of seniority that the appellants contend that the action of the respondent 1 in promoting respondents Nos. 2-5 is volatile of their service conditions in as much as the respondents though junior have been promoted without any determination as to the fitness of the appellants for the senior posts.
6. In their written reply the respondent No. 1, i'. e. Government of the Punjab have disclosed that on the recommendations of the High Court, and with the approval of Chief minister it was decided on 9-9-75 that some vacancies of Additional District & Sessions Judges which bad occurred, may be filled by promotion of Civil Judges and the said vacancies may be equally distributed between:
(a) Civil Judges recruited on temporary basis in 1963-64 (to which group the contesting respondents belong);
(b) Civil Judges recruited through normal channels in 1963 and subsequently (to which group the appellants belong).
7. It is claimed that promotions in controversy before us were made in accordance with the above formula after due consideration of merits of both the groups and that promotions were made in each group separately keeping in view their inter se seniority in the respective groups and after due consideration of their fitness.
8. The counsel for the respondent raised a preliminary objection as to the competence of this appeal on the ground that since the appeal as framed is calculated to question the fitness of the respondents to be appointed to the post of Additional District Judges was not maintainable as the same was debarred by proviso (b) to section 4 of the Punjab Service Tribunal Act, 1974 which reads as follows: "4(b).-No appal shall lie to a Tribunal against an order or decision of a Departmental authority determining tire fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade"
Reliance was also placed on the provisions of rule 9 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which was to the following effect.
(2) Promotion including pro forma promotion shall not be claimed as of right by any Civil Servants."
9. The appellants in reply to the preliminary objection submitted that in this case the grievance of the appellant was that there was no determination as to the fitness or otherwise of the appellants in so far as the posts reserved exclusively for the group of officers appointed oft ad hoc basis under the for mentioned promotion formula was concerned. Thus the bar under section 4(b) referred to above was rot attracted. According to the appellants there is no valid ground for the departmental authority for dividing the posts into two groups and thereafter considering for promotion only the officers falling in each of the respective groups. This action of the Government clearly indicated that for the posts reserved for the 'ad hoc' group the Members of the P. C. S. group were never considered to which consideration they have a right under the law. According to the appellants there is a clear distinction between "a right to be promoted" and -`a right to be considered for promotion" and all that is claimed in this appeal is that the appellants have a right to be considered for promotion and it is only thereafter that the Departmental authority is competent to make a decision as to the fitness or otherwise of any person.
10. After hearing both the parties we hold that the objection as to the maintainability of the appeal is not tenable and cannot be sustained. We agree with the appellant that proviso (b) comes into operation only when the determination for being appointed or promoted to a higher grade had in fact been made. In this case the grievance of the appellants that they were not, considered for a number of posts against which they were eligible to be-- considered appears to be well-founded.
In fact it is nobody's case that they have been considered for these posts. The expression "a person" occurring in proviso (b) to section 4 obviously had reference to "any civil servant aggrieved of a final order . . . . . . . . . . . ." as appearing in .the principal clause of section 4 aforesaid. We also agree that the right to be promoted is not the Fame thing as the right to be considered for promotion.
Since the appellants were only claiming to be considered for promotion, therefore, Rule 9 of 1974 Rules above as invoked by the respondents was not attracted to the facts of the case. For the reasons above, we overrule the preliminary objection.
11. On merits the appellants' first reliance is on section 8 of the Punjab Civil Servants Act, 1974, which provides for promotion to a non---selection post on the basis of "seniority-cum-fitness" for a civil servant who possesses such minimum qualifications as may be prescribed. In the case of a selection post the criterion for promotion is "selection on merit". It is contended that the post of Additional District & Sessions Judie is not a selection pest and is as such to be filled by promotion on the basis of seniority-cum-fitness for which purpose the seniority of the appellants becomes a relevant factor. Since the formula of promotion adopted by the respondent No. 1 is divorced from seniority it is as such volatile of section 8 of the Civil Servants Act. 'The promotion formula is also attacked on the grown that the aforementioned section 8 did not permit the promotion in any manner other than that prescribed in the said rule.
12, It is also contended that the formula for promotion devised by the Chief Minister is without authority as under the Constitution and under section 23 of the Civil Servants Act, 1974, it is the Governor anti not the Chief Minister who is authorised to make rules. The learned counsel challenges tire validity of the Punjab Government Notification of 3rd June, 1974, whereby the Governor was pleased "to authorise the Chief Minister of Government of the Punjab to make rules" under the Punjab Civil Servants Ordinance 1974. It is argued by the appellant that in section 23, the expression "or any other person authorised in this behalf" requires that the `other person' is to be authorised by the legislature and not by the Governor. With this argument it is urged that the notification of 3rd Jane, 1974 has no validity and is a nullity in the eyes of law. Consequently the aforesaid Notification failed to vest the Chief Minister with the power to frame the impugned formula or the rules. The learned counsel also submits that the fore mentioned interpretation of section 23 is in consonance with the principle that a delegate cannot further delegate his powers.
13. The learned counsel for the appellant refers to Article 240 of the Constitution of the Islamic Republic of Pakistan 1973, whereby the appoint--ments to and the conditions of service of persons in the service of a Province shall be determined by or under an Act of the Provincial Assembly'. In this context tine Punjab Civil Servants Act 1974 is cited (which is an Act of the Provincial Legislature) and it is argued that section 8 of the said Act creates a right to be considered for promotion. On this basis it is further urged that the Chief Minister, even if he was competent to frame tales, could not override the legislative provisions and dispense with the right of the appellants to b.- considered at the time of making promotions.
14. The learned counsel relying on section 8 of the Civil Servants Act and sub-rules 6, 7, 8 and 9 of rule 4 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1970, urges that said provisions of these statutes lay out completely the procedure for promotion and do not leave anything else to the discretion of the Government. The promotion formula under controversy is oblivious of and repugnant to these statutory provisions and has as such no validity or legal sanction.
15. It is further argued that the appellants are as a class on a higher footing than the respondents inasmuch as they are confirmed hands while the contesting respondents are neither confirmed nor entitles to be confirmed without passing the departmental examination. It is claimed that rules 7(2) of the Civil Service of Pakistan (Composition and Cadre) Rules of 1954 created a right of promotion to the past of Additional District and Sessions Judge for the members of f'. C. S. (Judicial Branch). Even after deletion of the said rule by the Federal Government vide Establishment Division's Notification dated 21-8-73, the right of promotion has been continued through S&GAD'a circular of 23-7-1974, issued in the context of the Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules 1974, the relevant portion of which is reproduced below: " (1) V, at reservation of posts for the purposes of initial/direct recruitment, promotion or transfer, in favour of persons belonging to a particular service or cadre or holding a particular post which have been abolished by the above rules, should continue to be followed in accordance with the existing quotas for promotion and initial direct recruitment laid. down in various service rules till the position is reviewed in the context of Administrative Reforms."
16. Mr. Taj Mohammad, the learned counsel for appellants Nos. 1, 5, 6 and 20 refers to definition of 'rules' in section 2(1) of the Civil Servants Act 1974 whereby rules means the rules made or deemed to have been made under the Act. Section 23, 1) of the same Act defines as to which of the rules may be 'deemed' to have been made under the Act, and it runs as under :23.-(2) Any rules, orders or instructions in respect of any terms and conditions in service of civil servants duly made on issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are net inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
Further relying on Articles 2 A 241, 268 and 275 of the Constitution, the learned counsel argued that till the navy law was framed under Article 240 of the Constitution, the old rules and laws would continue to be in force. In the result it is argued that the terms and conditions as envisaged in the C. S. P. (Composition and Cadre) Rules, 1954 will continue in force not with standing the deletion of rule 7 of the said Rules by the notification of 21-8-1973, which was a date later than the commencing date of the Constitution. In the alternative it is argued that the laws envisaged in Article 240 of the Constitu--tion were made in the form of Civil Servants Act, 1974 and section 8 of this Act was in the field at the relevant time to create a definite right for promo--tions in favour of the appellants.
17. Learned counsel further argues that if the promotion formula is deem to have been made under section 22 of the Civil Servants Act then the test of its validity is shat it should not be less favourable to the appellants than what was admissible to them under the Act. Since the promotion formula is manifestly less favourable to the appellants it cannot be deem to be covered by section 22 of the Civil Servants Act,
18. The respondents in rebuttal submitted that the post of Additional District Judge was not a post included in the 'service' as defined in rule 3 of the West Pakistan Civil Servants (Judicial Branch)
Rules, 1962, which reads as follows: "3 Constitution of service.-The Service shall comprise the posts of Civil Judges and such other posts as may be determined by Government from time to time."
Thus according to the respondents, the post of Additional District Judge bang not a post included in the service, was not a post to be filed by promotion but by appointment. As such it was open to the Government to make appointment from any source and there being no specific rules for making the appointment, the Government had the power to make the appointment according to their own choosing. Thus the formula framed by the Government on 2-9-1975 was perfectly in accord with the legal position and was unexceptionable on any ground. It was further argued that in fact the post of Additional. District Judge was originally not a post included in any cadre of provincial Service, and the promotion to these posts was governed by rule 7(2) of the Civil Service of Pakistan (Composition and Cadre) Rules, 1954 according to which only 1/3rd of the posts of the Additional District Judges were reserved for appointment for the Members of the Provincial Civil Service (Judicial Branch). Thus by arrangements this post formed a part of Central Cadre and this position continued till 21-8-1:973 when the aforesaid Rule was omitted from the Civil Service Rules.
There was no corresponding amendment in the Provincial Civil Service (Judicial Branch) Rules, nor was there any other rule framed to regulate the promotion to these posts from among the Members of the Provincial Civil Service. As such the character of appointments to the said posts was that of 'appointment' and not of 'promotion', l he respondents a4so submitted that the circular letter of the S&GAD, dated 23rd July, 1974 did not alter the position and the same was not relevant because it is related to the provisions of various Rules framed by the Punjab Government and had no bearing upon a Federal rule which had since been deleted. So far as the argument of the appellant based on section 8 was concerned, it was submitted that the same was not available to the appellant. Section 8 of the Punjab Civil Servants Act, 1974 is reproduced below for facility of reference: "8. Promotion.-(I? A civil servant possessing such minimum qualifica--tions as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed,
(a) in the case of a selection post on the basi3 of selection on merit; and
(b) in the case of a non-selection post, on the basis of seniority-cum--fitness."
According to respondents the essential requirements of section, 8, is that the rules have to be framed reserving some posts for Departmental promotion for which the minimum qualifications shall have to be prescribed, for the eligibility of the civil servants to be so-'promoted. According to appellants no rugs have been framed nor any qualifications have been prescribed. The only rules framed by the Government under section 23 of the Punjab Civil Servants Act, 1974 as enforced on 28th of August, 1974, were the Punjab Civil Service (Appointment and Conditions of Service) Rubs, 1974 of which rule 3 was as below: "3.--(1) Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to tune.
Appointments by promotion or transfer shall be made in accordance with Bart Il and by initial recruitment. in accordance with Part III .of these rules.
The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to tune."
In Part II as referred to in rule 3 above rules 10 and 12 according to respondents were relevant and are reproduced below: "10. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Selection Authority.
12. Until the rules laying down the qualifications and other conditions for the purposes of promotion are made, no person shall be promoted to a post in a higher grade on regular basis unless he has passed such test as may be specified by the appointing authority to be conducted by the selection authority Provided that the Government may dispense with the requirement of passing the test in relaxation to such posts as may be specified."
Even the above rules do not make any specific provision for reserving the posts of Additional District Judges for promotion, and also do not lay down any minimum qualifications for the same.
As such neither section 8 nor the Rules referred to above were available to support the case of the appellants. The learned counsel in short urges that section 8 of the Civil Servants Act, 1974 is not available to the appellants till such time as proper rules are made, qualifications are determined, conditions of eligibility are laid down and reservations of posts and division of posts into selection and non-selection posts is made by the competent authority. It is also canvassed that fn the light of the aforementioned facts this is not a case of promotion but of direct appointment to the post of Additional District and Sessions Judges, to which no claim can be laid by the appellants.
19. Mr. Mohammad Aqi1 Mirza, the learned Assistant Advocate. General to the Government of Punjab argued that the appellants were not aggrieved persons. He also argued that the appeal was barred by proviso (b) to section 4 of the Punjab Services Tribunal Act, 1974. He also adopted all the pleas advanced by Mr. Abid Hassan Minto the learned Advocate for the contesting respondents.
20. We have heard the parties and have also gone through the records, We find that at no stage the posts of Additional District and Sessions Judges were included in the service P. C. S. (Judicial Branch) by the Government in exercise of the powers vested under rule 3 of the P.C. S. (J. B.) Service Rules.
64. The only nexus that the members of P. C. S. (J. B.) had with the posts o: Additional District and Sessions Judges was through rule 7(2) of the C. S. P. (Composition and Cadre) Rules, 1954. As long as the above rule remained in field, we are clear in our minds that there existed a right for the members i of P. C. S. (Judicial Branch) to look for promotion to the posts of Additional District and Sessions Judges. The question for consideration before, us is, whether the S&GAD's circular letter of 23-7-1974 imparted continuity to the right of promotion of the members of P.C.S. (.I. B.) to the posts of Additional District and Sessions Judges, notwithstanding the aforementioned deletion of rule 7(2) of P. C. S. (Composition and Cadre) Rules, 1954 on 21-8-1973. The subject of the S&GAD's aforementioned circular is shown to be 'Punjab, Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974'. The intention in para 1(1) of the said circular reproduced in para. 15 supra is clearly to impart continuity to only those reservations of posts for the purposes of promotion (inter calls) which were abolished by the operation of the rules mentioned as subject i. e. the Punjab Civil Servants (Change in Nomenclature in Services and Abolition of Classes) Rules, 1974. It is here to be observed that rule 7(2) of C S. P. (Composition and Cadre) Rules, 1954 was deleted on 21-8-1973 while the aforementioned Abolition of Classes Rules of 1974 came into force on a much later date on 3-7-1974. The right of promotion of the appellants was therefore abolished not by the Abolition of Classes Rules, 1974 but by an earlier notification of the Federal Government.
It is, therefore, manifestly clear that the circular letter of S&GAD of 23-7-1974 does not seek to restore the right of promotion of the Members of P. C.S (1.B.) to the posts of Additional District sn-1 Sessions Judges which right was extinguished on 21-8-1973. We therefore, do not find any force in the argument of the appellant in this behalf. The posts of Additional Sessions Judges are Ex-cadre with respect to the P. C. S. (Judicial Branch), and in this context we agree that after 21-8-1973, apart from the Chief Minister's order dated 2-9-75, the members of the service has no right to claim appointment to the posts of Additional District and Session Judges. It further transpired from the perusal of the file that the formula as approved on 2-9-1975 by the Chief Minister was in respect of a limited number of posts and was consumed a9 soon as the aforesaid appointment were made.
We also find indications on the file that the formula vas not g to be operative for all tunes to come.
After the appointments covered by the formula were matte, there appears to be no rules or formula in the field to regulate the appointments to the post of Additional and District Session.
Judges from among holders of the posts of Civil Judges Section 4 of the Punjab Civil Servants Act makes the following provisions with regard to making of appointments: "4. Appointments.---Appointments to a civil service of the province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf."
'Prescribed' manner obviously means prescribed by rules. Rule 3 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1374, framed under the Punjab Civil Servants Act reproduced above in para. 18 of this judgment expressly provides that appointment includes appointment by promotion. Rules 49 and 12 of the said Rules also point in the same direction. Thus section 4 clearly covered the appointments by promotion as well. Even the formula dated 2-9-1975 treated the appointments as promotions. In practice also the appointments have been treated as promotions. The authorities have failed to frame the relevant rules regulating the appointments/promotions to the posts of Additional District and Sessions Judges although it appears to be imperative under the provision of law as reproduced above. It also appears to be a requirement of law under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. We are conscious that in the present contrary the Government was faced with an unusual and peculiar situation to fill up 10 vacancies in the rank of Additional District and Sessions Judge.
We are accordingly of the view that the Chief Minister who is also the rule-making Authority, under the circumstances, was competent to lay down a formula for promotions under controversy.
However, fn our view, it is incumbent upon the Government to frame the roles un4er section 23 of the Act, regulating the appointments as required by section 4 keeping in view the guidelines contained in section 8 of the Punjab Civil Servants Act of 1975: In our view this is the only way for Government for making appointments by promotion in future to the post of Additional District and Sessions Judges. The principle is well settled that when an enactment desires that something i9 to be done in a particular way, it hue to be done in that way or not at all. The following observations from The West Pakistan Province v. Jamshed Miran (PLD 1965 Lah. 729) as it occurs at page 732 of the judgment, fully fortifies our conclusions above "The fact that a certain method was provided by the Constitution for laying down the terms and conditions of service of persons serving in a civil capacity, clearly implies this the same could not be done in any other way. The other methods of determining the conditions of service of such parsons wary, in my opinion impliedly prohibited. It is, moreover, a well-established principle that if by an enactment something is desired to be done in a particular way it has to be done in that way or not at all. If the Government, therefore, wanted to impose any such condition on the respondent that his services could be terminated in a particular manner, they should have done on only by making the rules in this behalf and not by obtaining a declaration from the respondent."
21. As regards Article 241 of the Constitution of the Islamic Republic of Pakistan, 1973 relied upon by the learned counsel for some of the appellants, it provides for the continuance, in force all rules and orders enforced immedia--tely before the commencing day 'until the appropriate Legislature makes a law under Article 240', and that such rules and orders may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government. The Notification of 21-8-1973 amending the C. S. P. (Composi--tion and Cadre) Rules, 1954 was issued in the nature of the President of Pakistan deriving authority from section 25 of the Civil Servants Ordinance 1973 (X4V of 1973). The said Ordinance having duly become an Act of the Parliament (Act LXXI of 1973), tie amendment in the said Composition and Cadre Rules is deemed to have taken place under a law made by the relevant Legislature under Article 240 of the Constitution Rule 42) of the C. S. P.
(Composition and Cadre) Rules having been deleted with due authority of the Legislature, it was excluded from "continuance in force" under Article 241 of the Constitution. In this view we rejected the argument of the learne4 counsel that the said rule 7(2) continued in force despite its subsequent deletion by the Notification of 21-8-73.
22. Similarly Article 268 of the Constitution is of no avail to the appellants. The said article enjoins continuance in force of all existing laws etc. 'subject to the Constitution until altered, repealed or amended by the appropriate Legislature. With the finding already given that the abolition of rule 7(2) under discussion was competently effected, the argument of the leaned counsel is devoid of any force.
23. Article 275 of the Constitution also dues not advance the case of the appellants. What the said article ensures is the continuance of the same terms and conditions as were available under the preceding Constitutions to persons who were in service of Pakistan immediately before the commencing day. We have already reached a finding that the appellants were not possessed of any vested right of promotion to the posts under,- controversy immediately before the commencing date; hence the protection afforded in this Article is of no avail to the appellants.
24. The upshot of the above discussion is that we do not feel inclined to interfere with the appointment made by the Government in pursuance of the formula dated 2-9-1975: as approved by the Chief Minister and the appeal No. 330/613 of 1975 Is disposed of accordingly. We direct that the Govern--ment shall frame rules for making appointments to the posts of Additional District and Sessions Judges as required by section 4 of the Punjab Civil Servants Act of 1974 and make future promotions accordingly.
25. As regards the second appeal i. e. 175/811 of 1976, it is to be observed that the impugned order seeks to promote two Civil Judges mentioned therein to the rank of Additional District and Sessions Judge on 'ad hoc' basis. The, promotion is not -a regular one and its ad hoc nature implies that the promotion is yet to be brought on a regular footing on some future date. Since the regularization of these promotions will be governed by our directions in para. 24 above, this appeal is also disposed of accordingly.
26. Parties to be informed.