The petitioner who is Superintending Engineer/Director, Roads in the Communication and Works Department, Government of Punjab, has assailed the grant of seniority to respondent No,3 and so also has questioned the validity of Act I of 1986, whereby employees of the former East Pakistan Government were absorbed in their specific services in the Province of Punjab.
2. The facts of the case, briefly, are that Syed Jalal Haider, Chief Engineer, Research and Designs, Punjab Building Department, Lahore was originally an employee of Communication and Buildings Department, Government of East Pakistan. He was appointed as Assistant Engineer on 4-4-1961 and was promoted as Executive Engineer on 6-1-1968 and posted as such vide Notification dated 1- 4-1968.
3. After East Pakistan's debacle he managed to cross over to Burma and from Rangoon he arrived at Karachi by P.I.A. He was adjusted as Ex-East Pakistan employee in Communication and Works Department, Government of Punjab w,e,f, 31-12-1973 in the first instance on ad hoc basis and later on was promoted as officiating Executive Engineer in relaxation of the Punjab Civil Servants Rules, 1974.
4. In pursuance of the policy decision of the Government of Pakistan, Provincial Assembly of the Punjab passed Act I of 1986 with a view to accommodate the former East Pakistani employees who migrated to Pakistan within the specified period. Respondent No,3 was assigned the seniority in terms of the provisions of the aforesaid Act vide order dated 13-7-1988 in the cadre of Executive Engineer in the Communication and Works Department with effect from 1-4-1968, the date when he was promoted as Executive Engineer by the Government of East Pakistan. As a sequel to this seniority respondent No,3 was promoted as Superintending Engineer on 7-4-1987 in his own pay scale. He was, however, regularly promoted as Superintending Engineer on 22-11-1988.
5. In the latest gradation list of Superintending Engineers the writ petitioner was at S.No, 8, whereas respondent No,3 was at S.No,
2. The petitioner before this Court never challenged this allegedly wrong fixation of his seniority in the year 1988 before any competent forum. The petitioner has now challenged the seniority and has also questioned the vires of Act I of 1986, whereby me petitioner's seniority was determined.
6. This claim has been stoutly resisted by the learned counsel for respondent No,3 alleging inter alia that the petitioner badly suffers from laches inasmuch as the seniority assigned to the respondent in the year 1988 is being challenged in the year 1996. There are no Constitutional guarantees available to the writ petitioner and his terms and conditions of service are regulated only by law.
7. Arguments at pre-admission stage have been heard at a great length.
8. The petitioner has failed to prima facie establish that which of his right has been infringed. In the seniority/gradation list of Superintending Engineers he figures at S.No,8 whereas respondent No,3 has been listed at S.No,
2. None of the officers figuring between 3 to 7 in the list has ever questioned the validity of the order assigning seniority to respondent No,3. When the respondent was initially assigned the seniority at S.No,10-A the writ petitioner was at S.No, 30 in the year 1988. During all the nine years none from the officers at S.Nos. 11 to 29 had ever raised a finger against the fixation of the seniority of respondent No,3. It appears to have dawned upon the petitioner after such a long time that he had been wronged.
9. It was perhaps not brought to the notice of the petitioner that 1973- Constitution does not provide any Constitutional guarantees for the terms and conditions of service. Article 240 of the Constitution, inter alia envisages:-- "Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined-- (a)in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and (b)in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
Explanation.---In this Article, "All-Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament)."
Act I of 1986 was passed in pursuance of a mandate given by the Federal Government which had already passed Ordinance XI of 1983 with a view to accommodate erstwhile East Pakistan employees who had been dislodged and dislocated on account of the fall of East Pakistan and its conversion into Bangladesh. All its provisions are identical to the provisions of Ordinance XI of 1983.
Sections 3 and 4 of Act I of 1986 appear to be relevant here with a view to ascertain the validity of the impugned seniority assigned to the petitioner and so also qua the vires of the Ordinance. They shortly read as under:-- "3. An employee may, with the approval. of the competent Authority, be appointed to an existing or supernumerary post in the Grade, as far as practicable, equivalent to the scale of the former post of such employee from the date he holds such post.
Explanation.---In this section, "competent Authority", in relation to a post means the authority competent under the Punjab Civil Servants Act, 1974 (Act VIII of 1974) to make appointment to that post.
4. The service rendered under the former Government of East Pakistan by an employee shall count towards seniority in the grade of the post to which he may be appointed under section 3."
10.An identical question came up for adjudication before the Hon'ble Supreme Court in Civil Appeal No, 396 of 1992 which was reported as Muhammad Fakhruddin Khan v. Secretary, Establishment Division, Islamabad and 5 others (PLD 1994 SC 348). The question that arose in this case was that while fixing seniority of the civil servants in terms of this Ordinance whether the period spent by him from 18-9-1974 to 22-10-1976 while waiting for posting in Pakistan should or should not be allowed to be treated as period sent on duty for the purposes of seniority and pensioner benefits. The Court considered this proposition and held: "This Court in an appeal filed by the Federal Government against the above decision of Federal Service Tribunal in the case of Zaki Ahmad Sid4iqui (Civil Appeal No,205 of 1988) approved the decision of the Tribunal and maintained the order of the Tribunal allowing the period he remained out of employment after arrival in Pakistan on repatriation to be counted for his pensionary benefits. We, therefore, see no reason to take a different view in the present case and we, accordingly, hold that the period spent by the appellant while waiting for appointment after arrival in Pakistan on repatriation from former East Pakistan should be treated as period spent on duty for the purpose of seniority and pensionary benefits."
11.This would make more than clear that Syed Jalal Haider, respondent is entitled to seniority as claimed by him and he shall be deemed to have been continued in service as if East Pakistan's holocaust had ever happened. So, therefore, the petitioner's assertions that he was a temporary or ad hoc after joining service in Pakistan, absolutely carry no meaning and sense. The Federal Ordinance under which the Supreme Court decided the case was not declared to be ultra vires of the provisions of Constitution but it is apparent that the appellant in the above-referred case was granted relief deeming the enactment as a valid piece of Legislation. This, therefore, is sufficient to stamp validity on the Federal Ordinance and so also on Act I of 1986. The petitioner has failed to show that enactment was in any way arbitrary, capricious or discriminatory. In view of the peculiar conditions after the fall of Dacca the Government had every right to direct for accommodation of the officers of erstwhile East Pakistan and their absorption in the services of Pakistan or in the Provincial services never gave rise any to question qua the seniority assigned to them. Even otherwise no Constitutional guarantees are available to the petitioner and his terms and conditions of service had to be regulated by law which indeed has been so done. The petition is without any merit and deserves dismissal. Even otherwise, it badly suffers from laches. The seniorty was fixed in 1988 and the petitioner challenged in 1996. To reopen this issue after a period of 10 years is totally unwarranted in the given circumstances of the case. The petition is without any substance and is hereby dismissed.