' MUHAMAMD RAZA KHAN (MEMBER).---This judgment will also dispose of connected Appeals Nos.645(R) of 1997 and 704-R of 1997 being almost identical in nature.
2. The facts leading to the present appeals are that the appellants joined as A/XEN (BPS-17) though Federal Public 'Service Commission on 31-7-1984, 14-4-1986 and 5-4-1986 respectively, whereas the private Respondents Nos.4 to 7 have joined the same post on 8-4-1986, 8-4-1986, 16-4-1986 and 8- 4-1986 respectively. In 1989 the Seniority List was circulated wherein the appellants were shown at Serial Nos.13, 21 and 22 respectively while the private respondents appeared at Serial Nos.26, 33, 32 and 24 respectively. Thereafter, another Seniority List was circulated on 27-11-1994 which had led to certain litigation but finally on 7-5-1997 the impugned Seniority List has been issued wherein the appellants have been placed at Serial Nos.9, 12 and 13 respectively whereas the private.
Respondents have been placed at Serial No,5, 6, 7 and 8 respectively. Thus, the private respondents who were placed junior to the appellants earlier, have been placed senior to the appellants in the present impugned Seniority List. The appellants filed departmental appeals on 3-6-1997, 30-5-1997 and 11-6-1997 which have been rejected in July/August, 1997, and hence these appeals.
3. The private Respondents Nos.4 to 6 and the official Respondents Nos.1 to 3 contested the appeals. Respondent No,7 did not appear and was placed ex parte. The respondents have submitted their objections. The cause for the disturbance of inter se seniority as brought out by the pleadings of the parties, relates to the statutory provisions contained in the Compulsory Service in the Armed Forces Ordinance, 1971, as amended in 1978 and 1984. The private respondents have been given the benefits of the services rendered in the Army under the said Ordinance. The said statute provides for the compulsion on certain essential persons to render service in the Armed Forces as a result of call-up notice. In 1978 section 9-A was inserted whereby it was provided that following release from the Compulsory Service in Armed Forces, the Medical Practitioners, who had rendered not less than two years' service shall be entitled to count such period of service towards their seniority and pay. The amendment enforced on 7-10-1984, had included other essential persons as well alongwith the said Medical Practitioners. Thus, giving the benefit of the service rendered by the private respondents in Army satisfactorily for over two years, the said length of service has been included to their credit in the present position and thereby their pay and position in seniority. Had been refixed. Admittedly the private, Respondents joined the service in the Armed Forces with effect from 12-2-1983, 19-6-1982, 19-6-1982 and 19-6-1982 respectively and they were released on 30-11-1985, 31-3-1985, 28-2-1985 and 31-12-1984 respectively.
4. The appellants challenged the change in the seniority position on several grounds. Firstly that the Seniority List of 1989 has not been challenged by the private respondents and, therefore, it had attained finality and the Department was not competent to alter the settled position of seniority.
Secondly, that the benefit of compulsory service was extended to the Engineers on 7-10-1984 and, therefore, the services rendered under the said Ordinance after the promulgation of the amending Ordinance would extend concession of the statute prospectively and the services rendered prior to such amendment cannot be counted to the credit or benefit of such essential persons. Thirdly, that the law, as amended in 1984, was prospective in effect and could not be applied in retrospect and in this respect the case of Muhammad Rafique, appellant, was distinguishable, who joined the service on 31-7-984, whereas the law was enforced on 7-10-1984. Fourthly, that the said law was promulgated for the benefit of those who were already in service and have been called up compulsorily for service in the Armed Forces and that after rendering the requisite minimum length of service satisfactorily such officers are released to join their parent organizations without any break in service. It was argued that by applying this test to the case of the private respondents, they were neither in any service prior to joining the Armed Forces nor were they called up compulsorily to join the Army in any emergency nor even did they join the service in the present organization without any break in service. It was stated that the private respondents joined the service without any compulsion by their own free-will by submission of applications and on their release they did not join any service and after the lapse of considerable period they were selected by a fresh process. Hence it was argued that the said concession cannot be extended to the private respondents. Lastly it was argued that in accordance with the General Principles of Seniority, applicable in 1984 and 1986, the seniority determined by the Federal Public Service Commission, on merit basis, was to be followed and the same cannot be disturbed. More specifically the selectees of earlier batch will definitely be senior to the selectees of later batch. The learned counsel pointed out that in this case the private respondents who were much below in the merit list as compared to the appellants have superseded those who were senior in merits rather they have superseded the one of the appellants who was selected two years earlier than them.
Hence the cumulative effect of the argument was that the appellants have been prejudiced arbitrarily by placing the private respondents at elevated position in the Seniority List and their services had been reckoned with effect from the date when they were not actually in service.
5. The learned counsel for the private respondents as well as the learned Standing Counsel with the help of the representatives of the Departments argued the matter in detail and clarified the position from the Statute, the legal precedents and the official record. The first objection regarding the finality of Seniority List of 1989 was repelled on behalf of the respondents on the ground that it is not correct to say that the Seniority List was unchallenged. It was clarified that the pay of the private respondents was fixed in 1988 in accordance with the statutory provisions and they were given the benefit of the length of service rendered in the Army for protection of pay but the seniority position was not upgraded and when the Seniority List of 1989 was circulated it was challenged and that is why the mistake had been rectified in the impugned Seniority List. With regard to the length of service, the analysis of the dates when the private respondents joined the service in the Armed Forces and the dates when they were released clearly proved that the appellants have rendered more than two years of service rather more than 2-1/2 years of service in Army. Certain certificates attached to the objections also show that the services rendered by them were satisfactory and that the nature of the service was a compulsory one and, therefore, the perusal of such documents shows that the basic ingredients of the Statute have been satisfied to the extension of benefits. The other objection with regard to the acceptance of service and the filing of applications the learned counsel for the respondent's argued that the provisions of special law cannot be negated merely by the reason that there was the display of free choice. It was further argued that the concept of offer and acceptance apply in the Contract Law and the same was not applicable in service matters particularly in the compulsory service.
6. The perusal of the special Statute, as amended, shows that it begins with an overriding clause ,i,e,. "notwithstanding anything contained in any other law " Thus, the overriding clause appearing in a special Statute will prevail over any other law, subordinate legislation, rules and administrative instructions. If somebody had any grievance against the vires of such Statute, he could have approached the appropriate forum for rectification of any wrong but the vires of a Statute cannot be challenged collaterally in the proceedings of entirely different nature and more particularly in matters relating to the terms and conditions of service. This Tribunal exercises limited jrrisdiction relating to the vested terms and conditions of service and the vesting of a right is undoubtedly caused by the provisions of Statute or in the absence of legal provisions, the rules or the administrative instructions. If the Statute itself provides an additional benefit to certain functionaries who had performed certain functions, the same cannot be negated to protect the merit position of another civil servant based on the administrative instructions only. Thus, we are of the opinion that the Compulsory Service in the Armed Forces Ordinance, 1971, being a special Statute, has the overriding effect on all the other laws, rules and instructions and since the respondents have rendered the required minimum length of service satisfactorily, therefore, they will be entitled to the benefits of such service.
7. With regard to the retrospectivity of Statute it can be said that the amendment of 1984 has certainly given the benefits prospectively and not retrospectively but it will be wrong to interpret that prospective application would mean that a person coming within the ambit of essential service must render the required minimum length of service after the promulgation of the.
Ordinance to be entitled to the benefits and concessions provided therein. The amendment has practically provided for the extension of benefits to a particular category of employees for their service in the Armed Forces. In the present case, the amendment of 1984 cannot be said to have been applied retrospectively because the private respondents were not in service when the said amendment was incorporated. In the year 1986 when they joined service, the law was already there and they were entitled to the protection of law. Practically the amendment of 1984 amounted to a concession, rather an incentive, to attract the essential persons to the Armed Forces as well as those who have already rendered service as such, to any other service. The private respondents were released from the Army in 1984 and 1985 and the amendment in the law already promulgated with effect from 7-10-1984 had provided and incentive to them in the shape of protection of pay and seniority by reckoning the services rendered in the Armed Forces in any other department and thus, the private respondents joined the service after 1984 in accordance with the provisions of 'the statute, and they cannot be deprived of the benefits.
8. Thus, we are of the opinion that the private respondents fell within the category of essential persons -and they were entitled to reckon their seniority by adding the period of service rendered under the Ordinance towards the length of service in the present organization and, therefore, the determination of final seniority is in accordance with the statutory provisions and there has been no illegality nor there is any violation of the vested terms and conditions of service of the appellants rather the impugned Seniority List has protected the rights vested in the private respondents by the statutory provisions and thus, we do not find any force in the present appeals which are hereby dismissed.
9. No order as to costs.
10. Parties be informed accordingly.