1. ' CH. MUHAMMAD ARIF, J.---Respondent Capt. (Retd.) Muhammad, Ashfaq was not granted selection grade of Rs.2000--100--2200, provided in the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964 for 15% posts on the cadre of Director, Animal Husbandry (Regional) with effect from 13-5-1966 i.e. when one such post was vacated by its incumbent namely, Mr. S.D. Ahmad on 12-5-1966. His claim revolved around recommendations made by the then West Pakistan Public Service Commission for the grant of said selection grade to him, which was even assented to by the then Governor. According to him, third reference to the Commission in April, 1970 was illegal in that it was sans consent of the Governor and having not been provided for under the Rules of Business, the same was rightly ignored by it. As he was entitled to the said selection grade, it should have been granted him with effect from 13-5-1966 and he should have been allowed to retain it, after the dissolution of One Unit, till he would become entitled to opt for that national pay scale which replaced the said selection grade of Rs.2000-100-2200 with effect from 1-3-1972. His earlier appeal before the Punjab Service Tribunal, Lahore, hereinafter referred to as the Tribunal, bearing No.588/739/86, was disposed of by the Tribunal vide order, dated 16-10-1990 with the observations that his departmental representation had been disposed of by the Chief Secretary and not by the Governor and as the Governor was the Competent Authority required to decide the departmental representation within 3 months he should recourse thereto and "..might approach the Tribunal if he felt aggrieved and if advised, thereafter". Appellant No.2/Secretary to the Government of the Punjab, Livestock and Dairy Development Department, Lahore vide letter, No.2(2)SO.E-I/I&DD/69, dated 3-11-1992 based on the advice of SGA&ID i.e. appellant No.1 herein, informed him that his representation regarding the grant of selection grade has been considered and rejected by the competent Authority. However, meantime i.e. on 16-9-1992, he made Appeal No.434 before the Tribunal with the following prayer:-- "It is, therefore, respectfully prayed that the respondents may kindly be directed to perform their constitutional and statutory duties by giving effect to the orders of the then Governor in assenting to the reiterated recommendations of the West Pakistan Public Service Commission with regard to granting the appellant selection grade from 13 May 1966 to 1-11-1976 against the vacant post of selection grade, this pay shall stand protected after dissolution of West Pakistan, and also accepting the appellants appeal with costs."
2. After hearing the parties before it and after noticing their respective pleas, the Tribunal proceeded with allowing Appeal No.434 of 1995 through the impugned judgment, paras. 15, 16, 17 and 18 whereof read thus:-- I also beg to differ with the view expressed by the learned High Court in the quoted judgment that ' if the petitioner had received it at any stage, it would have been protected even after the disintegration of West Pakistan. If he has not received it yet, a post has to exist in the Punjab against which he can be adjusted'. My respectful view is that an independent post is not necessary for the grant of selection grade as it was and is generally allowed as a percentage of posts. The appellant would be simply entitled to the grant of selection grade of 2000-100-2200 with effect from 13-5-1966 and once it is now allowed, he would continue to draw, that scale from that date till 1.3-1972 when in the absence of continuance of selection grade, he would be entitled to the comparable National Pay Scale. In fact, the selection grade of Directors of Animal Husbandry to the extent of 15% of the posts under the consolidated Pay Revision Rules would remain admissible to Officers of the Punjab Government subject to calculation of 15% of such posts even after the dissolution of the One Unit i.e. with effect from 1-7-1970 till 28-2-1972 when the Pay Revision Rules, 1964 remained operative and officers even junior to the appellant would be entitled to it subject, of course, to the observance of the prescribed procedure viz. prior consultation with Public Service Commission or the Provincial Selection Board as the case might be. The selection grade was a part of Pay Revision Rules, 1964 and would, therefore, remain admissible till 1-3-1972 when the Pay Revision Rules were revised and National Pay Scales introduced. That would imply that the right to the grant of selection grade under Pay Revision Rules, 1964 would continue to accrue to the officers eligible for it, existence or disintegration of West Pakistan apart.
2. It is indeed a settled principle of law as enunciated in the judgment reported vide 1985 SCM R 1158 that an eligible civil servant would be entitled to promotion etc. from the date when the post fell vacant. Even under section 6 of the General Clauses Act, rights and obligations are to be determined in accordance with law prevalent on the date of accrual of the cause of action.
3. Consequently, the appellant would be entitled to the selection grade from 13-5-1966 when the post fell vacant. Subsequent charges would not affect his right to such promotion.
4. In view of the foregoing discussion, the appeal is allowed and the impugned order is set aside. The appellant shall be entitled to the selection grade of 2000--100--2200 (Consolidated) with effect from 13-5-1966 and shall also be entitled to opt for the comparable National Pay Scale viz N.P.S. 20 with effect from 1-3-1972 notwithstanding the time limit for giving such option laid down in the Punjab (Gazetted) Civil Services (Pay Revision) Rules, 1973, and consequential benefits in terms of arrears of pay, allowances etc. Formal order to the effect shall be issued by the respondent Department accordingly.
5. The parties are, of course, left to bear their own costs."
6. Paras. 2 to 4 of the Leave Grant Order, dated 15-4-1996, read thus: "2. The judgment under challenge is mainly based on the ground that on the recommendation of the Public Service Commission, the Governor had allowed selection grade to the respondent and, therefore, the same could not be denied to him.
7. 3.Assailing the above judgment, it was contended by learned counsel for the petitioners that the judgment proceeds on premises which are factually incorrect. According to him, the Governor of the Punjab had declined to accept the claim of the respondent. In this regard, he, today, produced before us a summary submitted to the Governor which carries a writing, dated, the 15th July, 1992, by Mr. Farooq Haroon, Secretary to the Governor, stating that the Governor had rejected the plea of the respondent. Learned counsel for the petitioners, therefore, submitted that the impugned judgment of the Punjab Service Tribunal was misdirected.
8. "4. Contention raised by the learned counsel need consideration. This petition is, therefore, accepted and leave to appeal against the said judgment allowed."
9. Hence this appeal.
10. It appears that the appellants remained unsuccessful before the Tribunal in their contentions that:
(1) no selection grade posts were allocated to the Province of Punjab, though the then Governor of the Province of Punjab had not concurred in the grant of selection grade to the respondent: and (2) that respondent was neither entitled to the selection grade of Rs.2000-100--2200 with effect from 13-5-1966 nor to continue to draw the said scale till 1-3-1972.
11. Mr. M. Zaman ,Bhatti, learned Advocate Supreme Court, representing the appellants, has contended that the dissolution of One Unit and non-allocation of selection grade posts to the Province of Punjab had rendered earlier recommendations of the Punjab Public Service Commission as infructuous. The impugned judgment cannot be sustained in that the Tribunal did not consider the merit-position of as many as 6 aspirants to the selection grade including Mr. S.A.
12. Chaudhry, who was at Serial No.1 of the seniority list. According to him, the view of the Tribunal that respondent could retain the selection grade in question by opting for the comparable National Pay Scale, was erroneous. He concluded his arguments by submitting that the Tribunal was in error of fact in holding that the Governor of Punjab had agreed to the grant of selection grade to the respondent. In this behalf, he again pressed into service writing, dated 15th July, 1992 of Mr. Farooq Haroon, Secretary to the Governor stating that the Governor had .rejected the plea of the respondent, then.
13. Contrarily, Mr. Afzal Ahmed, learned Advocate Supreme Court, appearing on behalf of the respondent, has supported the impugned judgment in toto and submitted that his client has received all the arrears of pay, allowances etc. during the interregnum and that reversal of the same will ruin his retired life beyond repair.
14. We have considered the arguments addressed at the bar and have also gone through the relevant material, with the help of the learned counsel for the parties. We find that the entitlement of the respondent to the grant of selection grade with effect from 13-5-1966 was rightly resolved by the Tribunal to endure to his benefit from that date to 1-3-1972 when, in the absence of the continuation of selection grade, his case will qualify to be equated with the comparable National Pay Scale. Even the additional reason, advanced by the learned Tribunal towards the middle of para. 15 of its judgment under appeal that the selection grade of Directors of Animal Husbandry to the extent of 15% of the posts under the Consolidated Pay Revision Rules, 1964 would remain admissible to Officers of the Punjab Government subject to calculation of such percentage even after the dissolution of One Unit, has not been shown to be suffering from any infirmity in law. We are not inclined to the view that respondent's entitlement to the selection grade with effect from 13- 5-1966, when the post fell vacant, to 1-3-1972, when the Pay Revision Rules were revised and National Pay Scales introduced, was either dependent upon the allocation of selection grade posts to the Province of Punjab or even upon the currency/continuation of selection grade in question. It is not denied by the appellants that a selection grade post fell vacant on 13-5-1966 and that he was twice recommended by the Commission, which recommendations were assented to by the then Governor but still he was not allowed selection grade.
15. The plea of the appellants that the Tribunal did not consider the case of six aspirants to this post, including Mr. S.A. Chaudhry who was at Serial No.1 of the seniority list, is of little help to them when it is considered in juxtaposition with the admitted position that the matter in relation to appellants' preference of Mr. S.A. Chaudhry for promotion to the selection grade over the respondent, in August, 1968, was not acceptable to the Commission when it expressed the view that the earlier appointment of the respondent as Advisor and Ex-officio Joint Secretary in preference to Mr. S.A.
16. Chaudhry amounted to latter's supersessior in that post of Advisor and Ex-officio Joint Secretary was higher than the post of Director. Even the observation made by the Tribunal in para. 5 of the judgment under appeal that the Commission reiterated their recommendation for preferring the respondent over 'Mr. S.A. Chaudhry on the basis of better record, was not disputed by the learned counsel for the appellants.
10. As regards the last plea raised on behalf of the appellants even at the time of Leave Grant Order in the matter, we suffice by observing that on earlier two occasions the then Governor had concurred with the recommendations of the Commission for the grant of selection grade to the respondent. The case of the appellants before the Tribunal was that a selection grade post in the scale of Rs.2000--100--2200 fell vacant in the Animal Husbandry Wing of Agriculture Department on 13-5-1966. Regional Directors of Animal Husbandry having 17 years Class I service were eligible for appointment to the selection grade. Promotion to the selection grade was to be made on the basis of seniority-cum-fitness. They have stuck to the same position even now. This Court has already observed in Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) that the question regarding eligibility of a civil servant to be promoted is different from one of his fitness for such advancement in his service career. The leading judgment in the case of Muhammad Anis and others (supra) was authored by one of us (Ajmal Mian C.J.) and the following excerpts therefrom are to the point:-- "15. We are, therefore, inclined to hold that the controversy before the High Court was, whether private respondents were eligible for consideration for promotion to Grade-18 as Assistant Collectors alongwith the private appellants. The above question could not have been decided without reference to the terms on which the private respondents were given higher grade, namely.
17. Grade 17 upon the upgradation of the posts of Appraiser and the Principal Appraisers pursuant to the above order of the late President Muhammad Ziaul Hach which in turn will involve consideration of the above various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 23 of the Civil Servants Act etc. The above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it. The judgment of the learned Single Judge of the Sindh High Court and of the Lahore High Court relied upon by Mr. Ali Ahmed Fazeel, learned Senior Advocate Supreme Court, do not correctly enunciate the legal position.
18. "16. We would, therefore, allow the above appeals and set aside the judgment under appeal with no order as to costs. However, we would remand the case to the Tribunal with the direction that the above writ petition filed by the private respondents before the High Court shall be treated as a service appeal pending before it, which will be decided after notice to the parties concerned in accordance with law."
19. Moreover, the respondent has received the arrears of his salary etc. in implementation of the judgment under appeal and having retired from service as far back as on 31-10-1973, justice demands that he should not be harassed by the appellants in the matter of enjoyment of retired life at this juncture.