' SH. RIAZ AHMED, C.J.---This appeal through leave of the Court is directed against order dated 14- 4-1999 of the Service Tribunal rendered in service appeal filed by Appellant Captain Retired Abdul Qayyum. The relevant facts in small compass are that the appellant had joined the Army Corps of Engineers on 21-10-1969 under Direct Short Service Commission (DSSC) for the Project relating to the construction of Kara Koram Highway (KKH). In the year 1971 General Headquarters of the Pakistan Army had sought options from the members of the said service for regular commission or for releases from the Pakistan Army. The appellant had opted for the release from the Army, but on account of extraordinary situation in the country after the war of 1971, his release was declined. It was the year 1975 when he was released enabling him to complete for any suitable job in the civil departments. Respondents in the present appeal were appointed as Assistant Engineers in the Communication and Works Department, Government of Punjab after 21-10-1969 and the appellant on release, from the Pakistan Army was also appointed as Assistant Engineer in the same department in 1975. It may be stated that the appellant and the respondents were appointed by the Government of Punjab on the recommendation of the Punjab Public Service Commission.
2. With a view to confer benefit of the service in the Army on joining the civil department to the Medical Practitioners, section 9A was inserted in the Compulsory Service (Armed Forces)
Ordinance, 1971 through Ordinance IV of 1978 known as Compulsory Service in Armed Forces (Amendment) Ordinance 1978 which reads as under:--
(1) Short tit1e and commencement.---(1) This Ordinance may be called the Compulsory Service in the Armed Forces (Amendment) Ordinance, 1978.
(2) It shall come into force at once and shall be deemed to have taken effect on the third day of December 1971.
' Insertion of new section 9A Ordinance XXXI of 1971.---In the compulsory service in. Armed Forces Ordinance 1971 (XXXI of 1971) after section 9, the following new section.
"9A. Concessions to medical practitioner released from service with the Armed Forces.--- Notwithstanding anything contained in any other law for the time being in force, a medical practitioner who, following his release from service with Armed Forces after having rendered satisfactory service under this Ordinance for a period of not less than two years, enters employments of the Federal Government or a Provincial Government shall be entitled to count towards his seniority in such employment the period of service rendered by him under this Ordinance . And to his pay in such employment being fixed after giving him credit for the service so render."
2. Relying upon section 9A, the appellant represented to the Government of Punjab that his case was at par with doctors, therefore he should also be given the benefit for having rendered services in the Pakistan Army. Thus, Governor of Punjab in relaxation of his residual powers contained in section 22 of the Punjab Civil Servants Act, 1974 with a view to alleviate the hardship of the appellant, vide order dated 18-7-1979 allowed the appellant benefit of Army Service. Section 22 of the Punjab Civil Servants Act, 1974 reads as under:-- "22. Saving.---Nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: ' Provided that, where this Act or any rule is applicable to the case of a servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule".
' Order of Governor of Punjab dated 18-7-1979 passed under section 22 of Punjab Civil Servants Act, 1974 is reproduced as under: "The Governor of Punjab is pleased to allow Capt. (Retd.) Abdul Qayyum, Assistant Engineer, presently posted as SDO Highway Chiniot to count Army Service (21-10-1969 to 26-2-1975) for the purposes of seniority in his Civil Appointment as Assistant Engineer, in relaxation of Rule 8 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974. Consequently, the seniority position of this officer is changed from serial No.125 of the Provisional Seniority List circulated vide No.SDO (C&W)-2/77, dated 15-7-1978 to a place between Messrs Muhammad Farooq Chohan (Serial No.2) and Muhammad Ashraf Dogar (Serial No.3) in the said list.
' The Governor of Punjab is further pleased to relax the condition of five years service in the department as Assistant Engineer, for promotion to the post of Executive Engineer, prescribed under the West Pakistan Service of Civil Engineers (Class-I) Rules 1967 by considering his service rendered in the Army as service in the Department.
' The Governor of the Punjab is also pleased to allow the officer the benefit of his army service towards pay and pension".
3. In pursuance of order dated 18-7-1979, seniority of the appellant was determined and he was ranked senior to the Assistant Engineers appointed after 21-10-1969 and further on the advice of the Regulation Wing, the case of the appellant was recommended in relaxation of condition of five years service for promotion as XEN contained in West Pakistan Service of Civil Engineers (Building and Roads) (Class-I) Rules, 1967, and as a result thereof, the appellant was promoted as XEN on 24-10-1979 and his seniority in the seniority list dated 1-1-1988 of the XEN in the Communication and Works Department Government of Punjab was ultimately re-fixed at serial No.31-A vide Secretary C&W order dated 6-6-1989.
4. Feeling aggrieved of the assigning of seniority to the appellant, Muhammad Iqbal Khokhar and three other Assistant Engineers of the Communication and Works Department assailed the fixation of seniority of the appellant as Assistant Engineer before the Punjab Service Tribunal, but appellant's promotion as XEN was not challenged. The said appeal was dismissed by the Tribunal on 13-1-1980 which was assailed in this Court and after the grant of leave, the appeal was partly allowed by this Court on 2-10-1990 vide judgment reported as PLD 1991 SC 35. The relevant portion is reproduced as under: "The appeal is, therefore, allowed. The judgment of the Service Tribunal is set aside and the service appeal filed by appellant is allowed partly to the extent that the order passed by the Governor conferring seniority on respondent No.2 by giving him benefit of service rendered from 21-10-1969 to 26-2-1975 in the Army is declared to be ultra vires section 22 of the Punjab Civil Servants Act and of no legal effect. As regards the rest of the exercise of relaxation of power, the appeal in respect of it is dismissed. The parties are left to bear their own costs.
5. In the light of the judgment, referred to above, Secretary Communication and Works Department Government of Punjab withdrew Part-I of the order dated 18-7-1979. Consequently, the appellant was placed below to the respondents in the seniority list of Assistant Engineers, but his promotion as XEN was not touched.
6. Being aggrieved, the appellant sought the review of the above judgment and during the pendency thereof, the Secretary Communication and Works Department vide order dated 26-6- 1991 revised the seniority of the appellant as XEN. The review petition was dismissed vide judgment reported as PLD 1992 SC 184.
7. Aggrieved by order dated 26-6-1991 revising his seniority in the cadre of XEN in utter disregard of Governor's order as well as this Court's order (PLD 1991 SC 35), the appellant had filed a representation before the Punjab Government and on expiry of statutory period for its decision, had invoked the jurisdiction of the Punjab Service Tribunal but his appeal was dismissed vide order dated 14-4-1999 and the same was assailed before this Court and leave to appeal was granted by this Court on 21-11-2000 in the following manner: "Learned counsel for the petitioner submits that two conflicting judgments have been rendered by this Court reported as Muhammad Iqbal Khokhar and three others v. Govt of the Punjab PLD 1991 SC 35 and Wajahat Hussain and others v. Province of Punjab PLD 1991 SC 82. He further submits that the entire matter requires further probe and authoritative pronouncement on the subject.
' The contention has force. Therefore, we are inclined to grant leave to appeal in this case. Order accordingly."
8. With the assistance of the learned counsel for the parties, we have thoroughly examined the judgment cited by them and have minutely scanned the entire service record produced in Court by representative of the department regarding ACRs and Show-Cause Notices and replies thereto by the appellant.
9. Dealing with earlier round of litigation in CA 530 of 1980 and in Civil Review Petition 106 of 1990, it was held by this Court that seniority under section 7 of the Punjab Civil Servants Act 1974 would be deemed to be a vested right of a civil servant in Punjab, and the Governor in exercise of his powers under section 22 of the Act ibid would not be competent to disturb the order of seniority in exercise of his residual powers. Consequently, the benefit of army service given to the appellant for purposes of his seniority was withdrawn by placing him in his original position in the seniority list of Assistant Engineers in the Communication and Works Department as envisaged in Rule 8(1)(a) of Civil Servants (Appointment and Conditions of Service) Rules 1974.
10. While delivering the aforesaid judgment, this Court compared the provisions of the Civil Servants Acts of N.-W.F.P, Sindh, Balochistan, Punjab and Centre and concluded that omission of expression "seniority shall not be vested right" in section 7 of Punjab Civil Servants Act 1974 would show that seniority of civil servants in Punjab was a vested right and thus considering the question relating to the powers of Governor under section 22 of the Punjab Civil Servants Act 1974, it was held that the grant of seniority under section 22 would be illegal unless it meets the strict test of being just and fair, otherwise it will be colourable exercise of the powers which was not permissible.
11. It is pertinent to mention that while deciding the case of Iqbal Khokhar and others, referred to above, the effect of section 9-A of the Compulsory Service in the Armed Forces (Amendment)
Ordinance 1978 was not considered. It is pertinent to mention here that by this time, section 9A was further amended and after the words "practitioner" the word "other essential persons" had been inserted.
12. Learned counsel for the appellant contended that way back in 193, the question of this benefit was agitated and a Full Bench of the Federal Shariat Court delivered a comprehensive judgment, and the relevant extract is reproduced as under:-- "that the ommission of the Engineers who are also compelled to serve the Armed Forces is a violation of the human rights of equality before law and equal protection of law which is proved by the Quran and Sunnah. After the word Medical Officer in section 9A words 'or an Engineer' shall be added."
13. It is stated that in pursuance of the aforementioned judgment of the Federal Shariat Court, further amendment took place in 1984 allowing the benefit of the Army service in civilian department to essential persons like Engineers and others.
14. A critical analysis of both the judgments rendered in Iqbal Khokhar and Wajahat Hussain's cases would reveal that the controversy raised in both these cases revolved around the interpretation of section 22 of the Civil Servants Act 1974 conferring the powers upon Governor for relaxing the rules.
It is worthwhile to mention that in both the cases judgments were authored by Justice Shafi-ur- Rehman Judge of this Court (as he then was). It was vehemently argued that in Wajahat Hussain's case, dispute arose over the seniority between the two categories of officers i,e, the Socical Medical Officers and the Social Welfare Officers. Both these categories were ad hoc appointees inducted at various points of time. On 28-2-1970, it was decided to regularize all the ad hoc employees subject to certain conditions and their seniority was to be counted with effect from 1-7-1970. Wajahat Hussain one of the Social Medical Officers was thus to be regularized from 1-1-1970 but he alongwith other Social Medical Officers had made a representation seeking relaxation of seniority Rule 8(a) of the Social Welfare Rule, 1964 for the regularization of his service with effect from 20-11- 1968 on hardship basis. On his representation, a Summary was presented to the Chief Minister, whereby regular appointment of Social Medical Officers was fixed under the Statutory powers of the Governor with effect from 20-11-1968. Relevant order of the Governor is reporudced as under: ' No.SOII (SW) 1-4-1975, whereas the Governor of the Punjab is satisfied that the application of Rule 8(a) of West Pakistan Social Welfare (Gazetted Post Recruitment Rules) 1964 will cause hardship in his case, therefore, it is decided that seniority of Mr. Wajahat Hassain vis a vis other Social Selfare Officers will be fixed from 20-11-1968."
15. The relaxation of the rules and the order of the Governor was upheld by this Court and the relevant portion of the judgment is quoted as follows: "The judgment of the Administrative Tribunal given in M. Shafi Arshad's case could not operate as res judicata between the parties because the seniority list under challenge before the Tribunal was a different one. Apart from that the Governor's order pursuant the decision in M. Shafi Arshad's case had taken over the field as from 21-7-1975 and the Governor had allowed Wajahat Hussain and others to claim seniority from 20-11-1968. This statutory instrument was not in issue in the decision in M. Shafi Arshad's case".
16. Another extract from the said judgment can be quoted in the following manner: "Even the Medical Social Officers were initially ad hoc appointees and their appointments had to be regularized. The rule of seniority contained in Rule 8(1)(a) is very specific and provides that "in the case of persons appointed by initial recruitments in accordance with order of merit assigned by the Commission, provided that persons selected for posts in an earlier selections shall rank senior to the persons selected in the later selection". Applying this principle, Wajahat Hussain and others for whom a special dispensation has come, would be entitled to count seniority from the date that the Governor ordered. The other ad hoc appointees will count their seniority from their regular appointment which took place on 11-5-1970 or under the general dispensation from 1-1-1970, as the case may be.'
' In the afore refered judgment it was further held: "The result of the acceptance of the two appeals and setting aside of the judgments of the Service Tribunal would be that seniority list under the challenge shall be prepared afresh giving the batchwise benefits to the selectees ignoring the retrospective date of regularization, except where the Governor has in individual cases allowed the benefit in exercise of his residual powers."
17. It is thus obvious that in the case of the appellant and that of Wajahat Hussain the Governor had relaxed the seniority rules. In this context, the attention of this Court was drawn to Ch. Kabir Ahmed case reported as 1982 SCM R 978 wherein the Governor of Punjab Province had relaxed the seniority rules in respect of respondents 2 to 4 retrospectively by virtue of section 22 of the Civil Servants Act (VIII of 1974) whereby as many as 132 persons were affected and this Court had upheld the exercise of residual powers by the Governor.
18. Reliance was also placed on a recently decided case by this Court in CP 668 of 1998 and it was contended that Muhammad Ashraf (respondent therein) was initially appointed as Assistant Engineer on 21-5-1969 in the Punj3b C&W Department on work charge basis and on 7-3-1978 Secretary order was assailed in the Punjab Service Tribunal, but the appeal was rejected on the ground that the said order had not been got approved by the competent authority-the Chief Minister later on a Notification was issued after 12 years on 31-12-1990 by Secretary C&W and the work charge service of Muhammad Ashraf as Assistant Engineer was got regularized retrospectively with effect from 1-7-1972 with the approval of the competent authority which was ultimately upheld by this Court in its judgment dated 2-7-1998 in CP 668 of 1998 as well as in Review Order dated 4-12-1998.
19. It ,was asserted that case of the appellant stands on a higher footing as compared to the cases referred to hereinbefore. The appellant was not inducted from backdoor, nor it could be assumed that seniority assigned to him by the Governor was unjust or unfair. Rather the order of Governor of Punjab was declared by this Court as just and equitable in the review petition of the appellant. The exercise of powers by the Governor of Punjab under section 22 of the Civil Servants Act 1974 cannot be said to be colourable exercise of powers. We may venture here to state that the appellant had rendered services in the Pakistan Army dedicatedly like doctors and was entitled to the benefit of whole of such service after release from the Armed Forces. There is nothing odd, or unjust or unfair for conferring such benefit toward seniority.
20. The insertion of the words "other essential services" in section 9A by virtue of 1984 amendment in 1971 Ordinance is nothing but recognition of the principle of fairness that a person who joins a civilian department after release from the Army is entitled to the service benefit. No doubt, the Governor of Punjab had conferred this benefit on the appellant in 1979 before the amendment made in 1984, but the powers of the Governor under section 22 of the Punjab Civil Servants Act fully justified the Governor to do so on the basis of principle of equity, good conscience and justice. Even insertion of words "or other essential persons" will have retrospective operation. Although, in Wajahat Hussain's case supra, section 22 of the Punjab Civil Servants Act was involved, yet principle of retrospective operation of the rules and the residual powers of the Governor was recognized. It was argued that judgment in Iqbal Khokhar's case was a judgment as per incuriam and the retrospective applicability of the insertion 'the other essential persons' was not considered, therefore, agreeing with the general observations made in the judgment reported as PLD 1997 SC 351, we are of the view that the appellant is entitled to have his seniority as Assistant Engineer with effect from 21-1D-1969 as ordered by the Governor and further implemented by the Department vide Secretary C&W order dated 6-6-1989 by re-fixing his seniority as XEN at serial No.31-A of the seniority list dated 1-1-1988.
21. It was further complained before us that on account of this chequered litigation undertaken by the appellant, he fell from the favours and chequered litigation undertaken by the appellant, he fell from the favours and a particular group was trying to damage him and thus a few vague show-cause notices were manipulated by the authorities including retirement from service dated 4-7-2001 which was issued to the appellant and on 11-7-2001, this Court had restrained the authorities from taking any adverse action against the appellant. After examining the entire record and ACRs of the appellant, we direct that respondent-department shall not proceed against the appellant, and no further mala fide action shall be taken against him in any manner. We further direct that after immediate restoration of his seniority as decided above, he shall be considered for promotion to his due rank. Our attention was also drawn to a show-cause notice issued to the appellant during the pendency of these proceedings, Obviously, this show-cause noticed dated 4th of July, 2001 was not in consonance with the overall performance of the appellant as reflected from his Service record and ACRs, We, therefore, hold that issuance of the show-cause notice ibid was for extraneous reasons. Thus, the competent authority shall take into view the justification of the issuance of said show-cause notice.
' Resultantly, we allow this appeal in the terms indicated above and the order dated 14-4-1999 of the Punjab Service Tribunal, impugned herein, is set aside.