1993 S C M R 982

[Supreme Court of Pakistan]

Present: Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ
AHSANULLAHA MEMON---Appellant
versus
GOVERNMENT OF SINDH through Chief Secretary,
and 3 others---Respondents
Civil Appeal No. 247-K of 1991, decided on 6th March, 1993.
(On appeal from the judgment of the Sindh Service Tribunal dated 29-7-1991 passed in Appeal
No. 97/89).
(a) Sindh Service Tribunals Act (XV of 1973)--
----S. 4---Sindh Civil Servants Act (XIV of 1973), S: 24---Constitution of Pakistan (1973), Art.
212(3)---Leave to appeal was granted to examine the questions whether a civil servant aggrieved
by notification which adversely affected his seniority in a particular cadre had locus standi to
question the validity of such notification; whether the operation of section 4 of the Sindh Service
Tribunals Act was not limited to only a seniority list but also covered any other final order issued
by the departmental authority affecting the seniority of a civil servant; and whether under section
24 of the Sindh Civil Servants Act, the Provincial Government could not pass any order in
favour of a civil servant in violation of statutory rules adversely affecting the rights and
privileges of other civil servants conferred by law.
Per Ajmal Mian, J.; Saleem Akhtar, J. agreeing; Sajjad Ali Shah, J., Contra--
(b) Sindh Service Tribunals Act (XV of 1973)--
----Ss. 24, 2(b) & 8---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975,
R. 10(2)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 4---Till
the time a deputationist was absorbed in the department, he did not enjoy the status of a "civil
servant" being not covered by the definition of "civil servant" given in S. 2(b) of the Act and S.
24 of the Act could not be pressed into service---Status of a deputationist in the Department was
that of an ad hoc appointee or a temporary appointee, therefore he could not have been
confirmed retrospectively---Appellant who was admittedly affected adversely as to his prospects
of future promotion had sufficient locus standi to insist that Government should act in
accordance .with law and Rules and not in contravention thereof as to affect him adversely in
purported exercise of its plenary power under S.24 of the Act---Scope of Ss. 8 & 24 discussed--
Limitations on the exercise of powers under S. 24 highlighted.
In the present case. respondent who was a University employee was taken on deputation for a
period of two years and, therefore, he was in the Education Department on temporary and ad hoc
basis till the time he was to be permanently absorbed.
If respondent (who was originally the employee of University) was to be permanently absorbed
in Grade-18 post, the normal procedure for appointment was through Public Service
Commission. As respondent's status as deputationist in the Education Department was of an ad
hoc appointee or a temporary appointee, he could not have been confirmed retrospectively, in
view of clause (2) of Rule 10 of the Rules of 1975. No doubt under section 24 of the Act, the
Government enjoys plenary power to deal with the case of any civil servant in such manner as
may appear to it to be just and equitable notwithstanding any provision of the Act and the Rules.
But the above power is to be exercised fairly, reasonably and in a manner which may not
prejudice or take away any interest or right of a third person. Till the time respondent was
absorbed permanently through the notification he did not enjoy the status of a civil servant as he
was not covered by the definition of "civil servant" given in clause (b) of section 2 of the Act,
being a deputationist and, therefore, till then, section 24 could not have been pressed into service
as it referred to a civil servant and not to a person who was an employee of a corporate body like
a University.
Respondent in his first application did not request for his absorption in the Education Department
with retrospective effect. Similarly, in the summary placed before the then Chief Minister, it was
not recommended that respondent be absorbed with retrospective effect. Consequently, the
notification absorbed respondent in the Education Department with immediate effect and not
retrospectively. Respondent did not protest or make claim for getting himself absorbed
retrospectively till the filing of his application after the expiry of nearly three years, to the then
Chief Minister Sindh. The above application was not entertainable after the expiry of such a long
period. The summary prepared on the basis of the above application apparently did not reflect
correct factual position inasmuch as it had been stated in the same that "This had definitely
placed appellant in a disadvantageous position, because meanwhile some junior Assistant
Engineers of the Department who, at the time of respondent's induction in Education Department
were not eligible for promotion on account of their not having rendered the prescribed length of
service i.e. 5 years whereas respondent was already in B-18 when he joined the Education
Department".
Factually the appellant had completed his five years service as he was appointed as Assistant
Executive Engineer in Grade-17 through the Public Service Commission and, therefore, he was
very much eligible for promotion when respondent was taken on deputation. There was also no
foundation to make averment in the above summary that the Department intended initially to
absorb respondent retrospectively as neither respondent in his above application which was filed
after expiry of about four months from having joined as a deputationist, claimed absorption
retrospectively nor this was so stated in the above first summary. The exercise of power by the
Government under section 24 of the Act in the present case could not be treated as just, fair and
equitable. It is true that in section 8 of the Act it has been provided that a civil servant has no
vested right in the seniority. The question in the present case was not simpliciter fixation of
seniority inter se between the appellant and respondent but the point in issue was, as to whether
respondent could have been permanently absorbed in the Education Department with
retrospective effect by virtue of section 24 of the Act, which admittedly had adversely affected
the appellant as to his prospects of future promotion. The appellant may not have any vested
right in a particular seniority in view of section 8 of the Act but nevertheless, he had sufficient
locus standi to insist upon that the Government should act in accordance with Service
Laws/Rules and not in contravention thereof as to affect him adversely, in purp9ted exercise of
its plenary power under section 24 of the Act.
The exercise of power by the Government under section 24 of the Act for absorbing respondent
with retrospective effect after the expiry of nearly three years therefore was not warranted by
facts and law.
The exercise of power by the Government under section 24 of the Act after the expiry of more
than three years from the date of issuance of notification absorbing respondent with immediate
effect for giving retrospective absorption was not warranted by facts and law. The factum that
respondent had become Executive Engineer in the University or that he was brought on
deputation in the Education Department as an Executive Engineer (Grade-18) when the appellant
was only Assistant Executive Engineer in Grade-17 was of no consequence, as admittedly the
appellant joined as an Assistant Executive Engineer, in the University, about two weeks before
respondent had joined the other University. Furthermore, the appellant joined the Education
Department on regular basis through the Public Service Commission and, therefore, in normal
course, upon the expiry of five years period the appellant had become eligible for promotion as
Executive Engineer in Grade-18 as five years length of service had been treated as the
requirement for promotion in the two summaries placed before the then Chief Minister.
However, he was actually promoted as Executive Engineer before respondent was permanently
absorbed in the Education Department upon his application. Till respondent was permanently
absorbed in the Education Department, he had no lien or right in the Education Department
except as a deputationist liable to be reverted back upon the expiry of two years period or earlier
in case it was so decided by the competent authority. Respondent's case was not a case of
hardship but he voluntarily opted to join the Education Department. The Government is free to
grant any benefit to respondent under section 24 of the Act so long as exercise of such power is
just and equitable and it does not, in any way, affect or prejudice a third person.
Respondent's absorption in the Education Department with retrospective effect was therefore
declared as not sustainable in law.
Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary
to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 and S. Habib Haider v. The
Secretary-General, Ministry of Interior, Islamabad and 14 others 1991 SCMR 1505 ref.
Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others
PLD 1992 SC 184 distinguished.
Per Sajjad Ali Shah. J., Contra.-
Mukhtar Ahmed and others v. Government of West Pakistan PLD 1971 SC 846 and Iqan Ahmed
Khurram v. Government of Pakistan PLD 1980 SC 153 distinguished.
S. Habib Haider v. The Secretary-General, Ministry of Interior, Islamabad and 14 others 1991
SCMR 1505; Muhammad Iqbal Khokhar and others v. The Government of the Punjab PLD 1991
SC 35; University of Balochistan v. Saeed Muhammad Khan and others 1986 SCMR 1063;
Islamic Republic of Pakistan v. Israrul Haq and others PLD 1981 SC 531 and Mazhar Ali v.
Federation of Pakistan 1992 SCMR 435 ref.
Abdul Hafeez Memon, Advocate Supreme Court instructed by Mrs. Majida Razvi,
Advocate-on-Record for Appellant.
Mr. A.G. Mangi, Addl. A: G. Sindh for Respondents Nos. 1 to 3.
Mr. Fakhruddin G. Ebrahim, Advocate Supreme Court instructed by Mr. N.C. Motiani,
Advocate-on-Record for Respondent No. 4.
Date of hearing: 6th May, 1992.
JUDGMENT
SAJJAD ALI SHAH, J.---This appeal with leave is directed against judgment dated 29th July,
1991 of the Sindh Service Tribunal at Karachi, whereby Appeal No. 97 of 1989 filed by
appellant herein is dismissed, in which Notification dated 22-6-1989 was challenged whereby
respondent No. 4 has been permanently absorbed as Executive Engineer in the Directorate of
Engineering Works of Education Department of Government of Sindh with effect from
31-7-1985.
2. Briefly stated the relevant facts giving rise to this appeal are that appellant was serving as
Assistant Engineer (BS-17) in Sindh Agricultural University, Tando Jam, when his services were
placed at the disposal of Government of Sindh (respondent No. 1) and he was posted as Project
Assistant Engineer (BS-17) in the Third Education Project, Education Department, Government
of Sindh, Hyderabad, in 1979. Subsequently, his services were regularised vide Notification
dated 14-7-1980. After approval from Departmental Promotion Committee appellant was
promoted as Executive Engineer (BS-18) with effect from 2n-11-1985. Mr. Akber Hussain
Rashidi (to be referred hereafter as respondent No. 4) was already working as Executive
Engineer (BS-18) with Sindh University, when vide Notification dated 11-8-1985, his services
were placed at the disposal of Government of Sindh on deputation for a period of two years.
Later vide Notification dated 8-4-1986, respondent No. 4 was absorbed permanently in the
service by the Government of Sindh with immediate effect. Grievance of the appellant is that he
was promoted as Executive Engineer (BS-18) by Government of Sindh on 22-11-1985 and in the
same cadre respondent No. 4 was confirmed with immediate effect as Executive Engineer
(BS-18) on 8-4-1986, hence respondent No. 4 ranked junior to the appellant and his name
appeared in the seniority list of Executive Engineers (BS-18) in the Education Department at
S.No. 4, while name of appellant appeared as S.No. 1. Subsequently respondent No. 4 was given
seniority with retrospective effect by the Chief Minister of Sindh and vide Notification dated
22-6>-1989, he has been absorbed permanently as "Executive Engineer in the Education
Department with effect from 31-7-1985, which was the date of his joining Education Department
as deputations and not as a civil servant. Government of Sindh circulated tentative seniority list
showing respondent No. 4 senior to the appellant. Feeling aggrieved against the retrospective
absorption in service of respondent No. 4, appellant filed review petition to the Chief Minister
and on getting no response within the stipulated time filed appeal before Sindh Service Tribunal
against Government of Sindh and their functionaries and respondent No. 4, which is dismissed in
terms stated above.
3. Respondent No. 4 in the written statement filed before Service Tribunal, took up the stand that
when his services were transferred to the Government of Sindh he was already working in
Grade-18 and at that time appellant was working in Grade-17. Notification dated 8th April, 1986
absorbing respondent No. 4 in the Directorate of Education as Executive Engineer with
immediate effect was withdrawn and cancelled as such created no right in favour of appellant.
No seniority list for Grade-18 had been published, therefore, appellant could not have cause of
action to invoke jurisdiction of Service Tribunal. Retrospective absorption of respondent No. 4
has complete cover and protection under section 24 of Sindh Civil Servants Act, 1973. From
11th August, 1985 he was relieved from University of Sindh and from that day he had become
civil servant and, therefore, Notifications issued in his favour by the Government of Sindh were
proper and valid.
4. Government of Sindh, Chief Secretary and Secretary, Education Department, impleaded
before Service Tribunal as respondents, filed joint written statement as supported wholeheartedly
case of respondent No. 4.
According to them due to shortage of Executive Engineers and experienced hands in their
department, services of respondent No. 4, already working as Executive Engineer (BS-18) being
an experienced hand were obtained from University of Sindh for posting in the same grade on
deputation for two years. He joined their department on 31-7-1985. Being satisfied with his
performance, Department recommended to the Chief Minister for his permanent absorption, but
by mistake Notification dated 8-4-1986 was issued absorbing him with immediate effect. Fresh
summary was prepared by the Secretary, Education Department, which was submitted to the
Chief Minister through Chief Secretary. The Chief Minister was pleased to approve absorption of
respondent No. 4 from 31-7-1985, when he joined Education Department and in the result earlier
Notification dated 8-4-1986 absorbing him with immediate effect was cancelled.
5. The Service Tribunal has concluded in the impugned judgment that appeal was premature for
the reason that Notification impugned in the appeal only provided for permanent absorption of
respondent No. 4 with which appellant was not directly concerned and it did not violate his terms
and conditions of service. Secondly, if by the impugned notification, seniority of appellant was
affected, then consequential seniority list was not in the field, which could have been challenged.
Service Tribunal then proceeded to examine the case in detail on merits and in the final analysis
has dismissed the appeal.
6. Leave has been granted to examine the following contentions:--
"(1) A civil servant aggrieved by notification which adversely affects his seniority in a particular
cadre has locus standi to question the validity of such notification.
(2) The operation of section 4 of the Sindh Service Tribunals Act is not limited to only a
seniority list but covers any other final order issued by the Departmental authority affecting the
seniority of a civil servant.
(3) Under section 24 of the Sindh Civil Servants Act, the Provincial Government cannot pass any
order in favour of a civil servant in violation of statutory rules adversely affecting the rights and
privileges of other civil servants conferred by law."
7. We have heard at length Mr. Abdul Hafeez Memon, learned ASC for the appellant, Mr. Abdul
Ghafoor Mangi, learned AA.-G. for official respondents and Mr. Fakhruddin G. Ebrahim,
learned ASC for respondent No. 4.
8. First contention noted in the leave granting order is that a civil servant has locus standi to
challenge notification which adversely affects his seniority in a particular cadre. This contention
is to be examined in the light of finding of Service Tribunal that in the absence of seniority list,
cause of action does not accrue to the appellant and on that ground his appeal was premature. We
have read carefully Notification dated 22-6-1989, which is at page 54 of the paper book. This
Notification says in unequivocal terms that respondent No. 4 is absorbed in the Education
Department as Executive Engineer (B-18) on permanent basis with effect from 31-7-1985. Ex
facie this Notification does not provide any cause of action to the appellant for the reason that it
does not say that respondent No. 4 would rank junior to the appellant. In such circumstances it
can be said that as contemplated under section 4 of the Sindh Service Tribunals Act, 1973,
appeal of a civil servant is made competent only when there is a final order by departmental
authority in respect of any of terms and conditions of his service. Since Notification mentioned
above does not speak about terms and conditions of service of appellant but relates to those of
respondent No. 4, it would be proper to say that appeal is premature in the absence of challenge
to consequential seniority list. Service Tribunal has observed in the impugned judgment that
during the pendency of the appeal seniority list was published by the department mentioning
name of respondent No. 4 at the top and that of appellant below him but that seniority list ways
not challenged by the appellant. It, therefore, follows that since Notification mentioned above,
does not speak about seniority of appellant, as such, it does not affect his terms and conditions of
service and his appeal before the Service Tribunal is not maintainable as he has no locus standi
to challenge that Notification. If appellant has grievance that the said Notification not directly
but indirectly affects his seniority, in that case he has to wait till consequential seniority list is
published or by any other finial order of departmental authority he is bypassed in the promotion
on that ground.
8-A. Second contention noted in the leave granting order is that operation of section 4 of the
Sindh Service Tribunals Act is not limited to only seniority list but covers any other final order
issued by departmental authority affecting the seniority of civil servant. Apparently there is no
cavil with this proposition which is correctly stated and legal requirement mentioned therein is
that a civil servant has to satisfy the Tribunal that the final order issued by departmental authority
has affected his seniority. If he is able to show that, his appeal would be maintainable and if not
then his appeal would be incompetent. In the instant case Notification in question is in respect of
respondent No. 4 and has absorbed him retrospectively. Both appellant and respondent No. 4 are
Executive Engineers in Grade-18. There is to follow either seniority list showing respondent No.
4 as senior to appellant or order of promotion to next grade in favour of respondent No. 4
bypassing appellant, which would give him reason to be aggrieved and cause of action to file
appeal contending that terms and conditions of his service have been violated.
9. Third contention in the leave granting order is whether under section 24 of Sindh Civil
Servants Act the Provincial Government cannot pass any order in favour of a civil servant in
relaxation of statutory rules adversely affecting the rights and privileges of other civil servants
conferred by law. In the instant case both appellant and respondent No. 4 were working
Universities before their induction in the Education Department. Appeal was working as a
Project Assistant Engineer (BS-17) in Agriculture University, Tando Jam, when he was deputed
to serve in the same capacity Education Department of Government of Sindh. After his selection
by Sin Public Service Commission, his appointment on deputation was converted it regular
appointment (BS-17) vide Notification dated 14th July, 1980. Appellant continued to work for 5
years in Grade-17 and then he was cleared Departmental Promotion Committee and was
promoted to the post Executive Engineer (BS-18) with effect from 20-11-1985. On the other ha
before the date of promotion of appellant to Grade-18, respondent No. 4 v already serving as
Executive Engineer (BS-18) in Sindh University and v transferred to Education Department of
Government of Sindh v Notification dated 11th August 1985 on deputation for a period of two
yea Subsequently by Notification dated 8th April, 1986, he was absorbed permanently but this
Notification was withdrawn and by subsequent Notification dated 22-6-1989, he was absorbed
on permanent basis with of from the date of joining the Education Department. In second
paragraph this Notification it is mentioned that previous Notification dated 8th April 1986
absorbing respondent No. 4 with immediate effect is hereby withdrawn and cancelled. It is this
Notification dated 22-6-1989 against which appellant is aggrieved rind he impugned it in his
appeal before Sera Tribunal.
10. Now dispute between the contending parties is with regard to seniority in Grade-18 as
Executive Engineers. Appellant obtained Grade-18 promotion on 20-11-1985 and on that date
respondent No. 4 was already Executive Engineer in that grade and was working in the same
Education Department having been brought there by transfer on 11-8-1985 which was about
three months earlier in point of time than date of promotion appellant. The question is of
regularisation and permanent absorption respondent No. 4 in the same grade (BS-18). Grievance
of the appellant is that services of respondent No. 4 should not have been regularised v
retrospective effect from the date of his induction in Education Department which is 31-7-1985
because it is not allowed under the rules and secondly such manner respondent No. 4 would rank
senior to appellant who was promoted in that grade on 20-11-1985.
11. In the context of what is stated above, speaking legally reference be made to Sindh Civil
Servants Act, 1973, which regulates appointments terms and conditions of service of persons in
the service of Pakistan connection with affairs of Province of Sindh. Section 6 of this Act
provides inter alia, that any appointment of a civil servant by promotion or transfer to a service
or post may also be made on probation as may be prescribed. Section further contemplates
confirmation on satisfactory completion of probation may be prescribed and also that there shall
be no confirmation against temporary post. Subsection (5) of section 7 requires that confirmation
of a civil servant in a service or post shall take effect from the date of occurrence of permanent
vacancy in that service or post or from the date of continuous officiating in such service or post
whichever is later. Section 26 of Sindh Civil Servants Act, 1973 has empowered the Government
to make such rules as appear necessary or expedient for carrying out purposes of this Act. As per
rule 4 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, authority
competent to make appointments to Grade-16 and above is the Chief Minister. Rule 7 thereof
further contemplates that promotions and transfers to posts in Grade 2 to 18 shall be made on the
recommendation of appropriate Departmental Promotion Committee. Rule 3 of Sindh Civil
Servants (Probation, Confirmation and Seniority) Rules, 1975, empowers appointing authority to
curtail or extend period of probation. Rule 4 thereof provides that confirmation of a civil servant
shall be made in the order of seniority in the permanent post on which no other civil servant
holds any lien. Rule 9(1) envisages that in each grade in a department there shall be separate
seniority list of a group of civil servants doing similar and performing similar functions and for
those appointments same qualifications and experience have been laid down. Rule 10(1)
provides that seniority of a civil servant shall be reckoned from the date of his regular
appointment. Rule 10(2) provides that no appointment made on ad hoc basis shall be regularised
retrospectively. Rule 12 provides that if an appointment is made by transfer, then person
appointed otherwise than on his own request, shall for the purpose of determining the seniority
be given benefit of his regular service or other post held by him before his transfer.
12. Now the case in hand of respondent No. 4 is to be examined in the light of legal provisions
mentioned above. Strikingly prominent features of the case are that respondent No. 4 was already
Executive Engineer (BS-18) in the University of Sindh and not at his request but on the initiative
of Education Department his services were obtained on deputation for two years in the same
grade in public interest (joint written statement of official respondents before Tribunal at page 64
of paper book). It is beyond dispute that this appointment by transfer was not ad hoc with regard
to either the post or incumbent. This fact is so confirmed by relieving order of Registrar of
University of Sindh (page 40 of paper book) and Notification of appointment dated 11th August,
1985 (page 41 of paper book). The period of probation of two years was not complete and within
8 months he was absorbed permanently with immediate effect vide Notification dated 8-4-1986.
This was done on the basis of summary which was approved by Chief Minister on 2-4-1986.
Subsequently, another summary was floated mentioning this fact that the intention of the
department was to request for permanent absorption of respondent No. 4 from 31-7-1985, which
is date of his entry in service of the department as requested r1y respondent No. 4 but
inadvertently earlier Notification dated 8-4-1CM6 mentioned absorption with immediate effect.
Accordingly vide order dated 16-6-1989, the Chief Minister of Sindh was pleased to approve the
summary granting permanent absorption with effect from 31-7-1985 and in consequence second
Notification was issued on 22-6-1989 allowing retrospective absorption as stated above and in it
this fact is mentioned that previous Notification dated 8-4-1986 is withdrawn and cancelled.
Correct reflection of facts is contained in paragraphs 3 and 4 of summary which is approved by
the Chief Minister on 16-6-1989 (page 11 of second paper book) which are reproduced as
under:--
"Since in 1985, Education Department did not have enough qualified engineers of its own it was
proposed to the then Chief Minister (Annexure-III) to absorb him permanently in the
Department. While the Department was considering his permanent absorption, Mr. Rashdi also
filed his request on 2nd December, 1985 (Annexure-IV) for absorption on the rolls of the
Education Department. Chief Minister was pleased to approve Department's proposal (Annexure
III) and Notification to that effect was issued and his absorption became effective w.e.f. 8th
April, 1986 i.e. date of issue of Notification (Annexure V).
The Administrative Department had intended and wished to have Mr. Akbar Rashdi absorbed
from the date of his joining i.e. 31st July, 1985 because of his excellent performance, but
inadvertently the specific date of his absorption could not be mentioned in the summary resulting
in the absorption in the Education Department w.e.f. 8th April, 1986. This has definitely placed
Mr. Akbar Hussain Rashdi in a disadvantageous position, because meanwhile some Junior
Assistant Engineers of the Department who at the time of Mr. Rashid's induction in Education
Department were not eligible for promotion on account of their not having rendered the
prescribed length of service i.e. 5 years whereas Mr. Rashdi was already in B-18 when he joined
the Education Department. The people who got promoted in the meanwhile were M/s.
Ahsanullah Memon and Mahmood Ali Lakho. They were promoted to B-18 on 11th December,
1985. Mr. Lakho even served under Mr. Rashdi as an Assistant Engineer. The comparative
service particulars are detailed below:"
13. It is, therefore, crystal clear and beyond question that action of the. Government impugned in
this appeal has been competently taken with complete cover of rules. First of all the appointment
was not ad hoc and could be regularised retrospectively from the date of entry in service and no
rule has been pointed out disenabling the Government from doing so. Action of the Government
can be considered in the light of discretion given to the Government to curtail or extend the
period of probation. Valid reasons have been given as stated above for curtailment of period of
probation and regularisation. Appellant has no vested right to claim seniority against respondent
No. 4 and on that ground seek to stop regularisation of respondent No. 4 from the date of his
entry in the service. Prohibition mentioned in Rule 10(2) of Sindh Civil Servants (Prohibition,
Confirmation and Seniority) Rules, 1975 is in respect of ad hoc appointment and nothing has
been shown to us to support that appointment in dispute was or is ad hoc.
14. One other noteworthy fact is that at the time when respondent No. 4 was being considered for
permanent absorption, recruitment rules for the posts of Executive Engineers in the Directorate
of Engineering and Works of that department were non-existent. Draft was prepared and sent to
Recruitment Rules Committee of Sindh Public Service Commission. It was proposed by the
Committee that post may be filled in by promotion from amongst Assistant Engineers working in
the Department as was being done in the C&W department. As mentioned in the summary for
Chief Minister dated 18th January, 1986 (page 7 of second paper book) Education Secretary did
not endorse that suggestion for the reason that promotee engineers were not available as all of
them had been promoted and newly-recruited Assistant Engineers of the Department were far too
junior for promotion. In such circumstances, proposal was made that respondent No. 4, who had
served in various capacities for more than 8 years in Grade-18 as against required length of
service of 5 years, may be absorbed as Executive Engineer in relaxation of the rules.
15. As claimed by respondents, impugned action is taken by the Government under section 24 of
Sindh Civil Servants Act, 1973, which reads as under:--
"Nothing in this Act or in any rule shall be considered to limit or abridge power of Government
to deal with the case of any civil servant in such manner as may appear to it to be just and
equitable:
Provided that where this Act or any rule is applicable to the case of a civil servant, the case shall
not be dealt with in any manner less favourable to him than that provided by this Act or such
rules."
16. Bare reading of section 24 of the Sindh Civil Servants Act, 1973, makes the intention of
Legislature very clear that the Government is empowered to make deviation from rules or grant
exemption from application thereof in a fit case which may appear to the Government to be just
and equitable. Vastness or enormity of this power of the Government can be visualised in the
light of section 26 of this Act under which the Government has been given power to frame,
amend or repeal the rules. What case is just and equitable is for the Government to decide but it
can be said that in the normal course provisions of this Act and rules framed thereunder are to be
acted upon but in an extraordinary case which is considered to be just and equitable application
of rules can be exempted if causing difficulty converting the case into a hardship case. We are of
the view that the Government should not and cannot exercise these powers in a case where
vested rights of other civil servants are violated and impugned upon.
17. Having given due anxious consideration to the fact as observed by the Service Tribunal in the
impugned judgment that during the subsistence of probation when case of respondent No. 4 was
recommended for regularisation, it was not put up before Departmental Promotion Committee as
is required under Rule 7 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules,
1974. It is therefore, clear that as it appears from the record and persual of two summaries
submitted to the Chief Minister in this connection, views of Secretary, Chief Secretary and
Minister were consistent and heavily in favour of respondent No. 4 showing complete
satisfaction with his work and performance and the Chief Minister, who is appointing authority
also shared the same views, hence in such circumstances reference of the case to the
Departmental Promotion Committee for obtaining its recommendations would be just a formality
rendering itself as unnecessary.
18. From the rulings cited by Mr. Memon, learned counsel for the appellant in support of his
contentions, case of Mukhtar Ahmad and others v. Government of West Pakistan (PLD 1971 SC
846) is not attracted to the facts of this case for the reason that order impugned therein was
passed before promulgation of Civil Servants Act, 1973 and other co-related Provincial Laws
and at that time Constitution of 1962 was in force. Second case cited by him is of Iqbal Ahmed
Khurram v. Government of Pakistan PLD 1980 SC 153 which also does not advance the case of
appellant for the reason that points decided in the reported case and the facts are different. The
nearest point comparable is the interpretation of sections 23 and 25 of the Civil Servants Act,
1973. In that case Federal Government under rules had altered the method of recruitment and
promotion and it was claimed that the new rules would supersede the existing rules on the
subject and would govern the eligibility for promotion and recruitment. Objection was raised by
the counsel for petitioners appearing in that case that proviso to section 23 would come in the
way to frame such rules. It was held that the President or any person authorised by him has
unrestricted power under section 25 to make such rules as appear to him to be necessary or
expedient. Section 9, dealing with eligibility for promotion did not guarantee reservation of rules,
which are capable of change. It was further held that reading of section 23 and the proviso as a
whole, makes it clear that it is a residuary provision and enables the Government to deal with the
case of any person under the rules according to justice and equity so long as he is not treated less
favourably than the rules required and the Government can within its plenary powers make
adjustment of a compensatory nature. Residuary provision in no way controls plenary powers of
Government to frame rules under section 25 of the Act.
19. Reliance by Mr. Memon on the case of S. Habib Haider v. The Secretary, Ministry of
Interior, Islamabad and 14 others 1991 SCMR 1505 is not apt for the reason that in the reported
case petitioner was employed in Pakistan Narcotic Control Board' and in 1977 was brought to
Federal Investigation Agency on deputation and was absorbed as Inspector in 1982. He was
given seniority from 1982 but he claimed the same from 1977 when he was brought on transfer.
His request was rejected by the department as well as by the Service Tribunal. It was held by the
Supreme Court that letter of transfer on deputation clearly indicated that, appointment was
temporary and ad hoc and he was liable to reversion to his parent department and, therefore, he
was given rightly seniority from the date of his regular absorption in the year 1982. As against
that in the instant case letter of transfer of respondent No. 4 to the Education Department and
other papers do not indicate that transfer was ad hoc in nature.
20. Incidentally both the learned counsel namely Mr. Memon for appellant and Mr. Fakhruddin
G. Ebrahim for respondent No.4 have cited and relied upon judgment in the case of Muhammad
iqbal Khokhar and others The Government of the Punjab (PLD 1991 Supreme Court 351. The
facts of the reported case are that four appellants were recruited directly in 1974 through Public
Service Commission as Assistant Engineers in the service of Engineers. Buildings and Roads,
Government Punjab. Respondent No. 2, who was retired Captain of Army was recruited in the
year 1975 in that department by the same process. Governor of Punjab passing order on 18th
July, 1979 gave retrospective seniority to respondent No.2 to count his army service, relaxed
condition of 5 years service in the Department as Assistant Engineer for promotion and also
allowed him benefit of his army service towards pay and pension. In consequence seniority
position of respondent No.2 was changed from S.No. 125 of the Provisional Seniority List to a
place between S.No.2 and S.No.3. Not succeeding in the department on representation,
appellants filed appeal before Service Tribunal which was dismissed on the short ground that
Governor had assigned seniority in relaxation of rules, hence that order was valid. In appeal this
Court has held that Punjab Civil Servants Act does not expressly say that seniority shall not be a
vested right though all other provincial laws say so. Secondly power of making rules of seniority
subordinated the right of seniority but in Punjab it is not so. The obvious conclusion is that in the
Punjab seniority continues to be a vested right of a civil servant, elsewhere it is not so.
Examining in detail section 22 of the Punjab Civil Servants Act in juxtaposition with relevant
rules this Court has come to the conclusion as stated under :-
"The only question that remains to be examined is whether the power possessed by the Governor
under section 22 of the Punjab Civil Servants Act, to which the provisions in the Rules on the
same subject are subordinate, justify the conferment of seniority retrospectively in a manner to
violate the provision of Rule 8(1)(a) of the Appointment Rules and 15(1)(a) of the Service Rules
of 1967 in a manner to ' prejudicially and adversely affect the vested right of the appellants and
many others. The dispensation under section 22 of the Punjab Civil Servants Act is individual
and is limited and controlled by a proviso which establishes the supremacy of the Act and the
Rules. The relaxation can be beneficial to the civil servant without being prejudicial to anyone
else even to the civil servant who is granted relaxation or exemption. On that principle the
impugned Order of the Governor is ultra vires section 22 of the Punjab Civil Servants Act in so
far as it grants the respondent No.2 seniority for the period 21-10-1969 to 26-2-1975 and refixes
the seniority accordingly. The allowance to an Officer the benefit of his Army service towards
pay and pension and relaxation of five years service in the Department as Assistant Engineer for
promotion to the post of Executive Engineer do not by themselves prejudicially affect anyone,
and are therefore, not in violation of the law but in relaxation of it. Therefore, they are declared
to that extent to be valid and proper."
21. Mr. Memon relies upon the reported judgment mentioned above in support of his contention
that retrospective regularisation cannot be made particularly, when it is violative of rules. On the
other hand, reliance is placed by Mr. Fakhruddin G. Ebrahim on this judgment m support of his
contentions that in Sindh there is no vested right to seniority and in the reported case order of the
Governor was declared ultra vires section 22 of the Punjab Civil Servants Act for valid reasons
in the light of peculiar facts of that case. In that case appellants were appointed one year earlier
and by retrospective seniority respondent No.2 superseded 122 persons. According to him facts
of the instant case are different in which appellant does not have any vested right to have stopped
retrospective regularisation from date of entry in that department of respondent No.4.
22. After hearing of appeal, a draft judgment was prepared and before its finalisation during
discussions some points had cropped up for which further hearing became necessary. In the
circumstances five points were formulated and notices were issued to the advocates of the parties
for further hearing. The points are as under:-
(1) What is the status of a person on deputation in the department in which he works on
deputation?
(2) Whether a person on deputation can be absorbed permanently in the department with effect
from the date of entry on deputation?
(3) What was the position inter se between the appellant and respondent No.4 as to their
induction in Grade-17 in the respective Universities?
(4) On what date respondent No.4 was promoted/confirmed in Grade-18 in Sindh University?
(5) Whether the impugned order of absorption of respondent No.4 with effect from the date of
his coming on deputation could have been passed under section 24 of the Sindh Civil Servants
Act, 1973.
23. In further hearing learned counsel for the parties were again heard in detail. There is no
dispute about the fact that respondent No.4 was originally an employee of Sindh University and
was on deputation with Education Department and till his regularisation in the Education
Department he was not Government servant as is defined in section 2 of Sindh Civil Servants
Act, 1973. In support reference can be made to the case of University of Balochistan v. Saeed
Muhammad Khan and others (1986 SCMR 1063). There is also no quarrel with the proposition
that as long as respondent No.4 continued to be on deputation he was to be treated as permanent
employee of the University. Deputationist is defined in the case of Islamic Republic of Pakistan
v. Israrul Haq and others (PL0 1918 SC 531) as employee who is appointed or transferred to a
department different from one to which he permanently belongs and ceases to be regarded as
such on confirmation or reversion to his substantive post. On transfer to another department lien
continues to remain and could be terminated only when transferee is confirmed against some
permanent post until then he would be excluded from definition of civil servant as long as he
remained on deputation. Reference can be made to the case of Mazhar Ali v. Federation of
Pakistan (1992 SCMR 435).
24. I am of the considered view that in the instant case respondent No. 4 was already working as
Executive Engineer (BS-18) with Sindh University when he was transferred to Education
Department vide Notification dated 11-8-1985, while appellant was promoted in the Education
Department as Executive Engineer (BS-18) with effect from 20-11-1985, hence it cannot be said
that both were inducted in Grade-18 at the same time and in the same No. 4 was already in
Grade-18 when appellant was promoted to that grade. Secondly, I am unable to find in the
Notification of M transfer of respondent No. 4 to the Education Department and other relevant
papers any indication that appointment was ad hoc in nature Thirdly, since the transfer was made
by the Government and was not at the instance of respondent No. 4 and he was transferred in the
same grade and further the Government was satisfied with his performance of duty and for valid
reasons absorbed him permanently from the date of entry in the department, impugned order was
validly passed within the four corners of the rules which appears to be just and equitable as
contemplated under section 24 of the Sindh Civil Servants Act, 1973.
25. For the facts and reasons mentioned above, impugned judgment is upheld and this, appeal is
dismissed as having no merits.
AJMAL MIAN, J.---I have had the advantage of reading the judgment proposed to be delivered
by my learned brother Sajjad Ali Shah, J. With due deference to him, I am unable to persuade to
myself to agree with the same. This is, therefore, my separate note.
2. For the purpose of resolving the controversy in issue, the relevant facts are that initially the
appellant joined the Agricultural University, Tando Jain, as Project Assistant Engineer (B-17) on
1-1-1978, whereas respondent No. 4 joined the Sindh University on 26-1-1978 as Assistant
Executive Engineer (B-17). It seems that the appellant was taken in the Education Department,
Government of Sindh, as an Assistant Engineer in 3rd Education Project Implementation Unit,
Education Department, Government of Sindh, Hyderabad, on ad hoc basis through Notification
dated 23-9-1979. It further seems that. he joined the above Department on regular basis through
Sindh Public Service Commission, Hyderabad, with effect from 2-4-1980 under Notification
dated 14-7-1980 (at page 39 of the paper book). It appears that respondent No. 4 continued to
remain in the Sindh University till 31-7-1985 when he wac taken on deputation as Executive
Engineer for a period of two years through Notification dated 11-8-1985. It further appears that
after the expiry of about five months after having come on deputation, respondent No.4 through
his application dated 2-12-1985, requested the Secretary to the Government of Sindh, Education
and Culture Department, to absorb him as Executive Engineer (B-18) in the Education
Department on permanent basis. Pursuant to the above application, the then Chief Minister of
Sindh, ordered the absorption of respondent No. 4 in the Education Department, Government of
Sindh, on permanent basis. Consequently respondent No. 4, through Notification dated 8-4-1986,
was absorbed with immediate effect. It may be advantageous to reproduce the above notification,
which reads as follows:-
"GOVERNMENT OF SINDH
EDUCATION AND CULTURE DEPARTMENT

Karachi dated the 8th April, 1986.
NOTIFICATION
No. S.O. (E-1)1/11 (Engg)/85.---Government of Sindh is pleased to absorb Mr. Akbar Hussain
Rashdi, Executive Engineer (B-18) University of Sindh, presently working as Executive
Engineer in the Directorate of Engineering Works, Education and Culture Department, on
deputation, as Executive Engineer (B-18) in the said Directorate of the Education and Culture
Department, with immediate effect."
3. It may be pertinent to point out that before respondent No. 4 was permanently absorbed in the
Education Department, the appellant, being a permanent employee of the Department as
Assistant Executive Engineer with effect from 2-4-1980, was promoted as Executive Engineer
after clearance from the Departmental Promotion Committee on 11-12-1985.
4. In the first seniority list after the above promotion and permanent absorption prepared, the
appellant was shown senior to respondent No. 4. In spite of that, the appellant had filed Service
Appeal No. 101 of 1989 in the Sindh Service Tribunal, hereinafter referred to as the Tribunal, on
the ground that the appointment of respondent No. 4 in the Education Department was illegal as
it was in contravention of the Service Laws and the Rules but the above appeal was dismissed in
limine.
5. It seems that after the expiry of nearly three years from the date of issuance of the above
Notification dated 8-4-1986 permanently absorbing respondent No. 4 in the Education
Department with immediate effect, respondent No. 4 filed an application on 23-3-1989 addressed
to the Chief Secretary, Government of Sindh, requesting him with exercise of the powers vested
under section 24 of the Sindh Civil Servants Act, 1973, hereinafter referred to as the Act, he may
be absorbed with effect from 31-7-1985, the date he had joined the Education Department. Upon
receipt of the above application, the matter was again placed before the then Chief Minister of
Sindh, who through his order dated 16-6-1989, ordered the absorption of respondent No. 4 with
effect from 31-7-1985. Pursuant whereof, a notification dated 22-6-1989 was issued which reads
as follows:-
"No. S.O.(P&D-1)15(60)/87-80.---The Government of Sindh, in exercise of the powers
conferred under section 24 of the Sindh Civil Servants Act, 1973, is pleased to absorb Mr. Akbar
Hussain Rashdi, Executive Engineer (B-18) University of Sindh, on deputation with Education
Department as Executive Engineer (B-18), in the Directorate of Engineering Works, Education.
Department, on permanent basis with effect from 31-7-1985, the date of his joining the
Education Department.
(2) The Notification N.S.O. (E-I)1-11(Engg:)/85, dated the 8th April, 1986 is hereby
withdrawn and cancelled."
6. Thereupon, the appellant filed Appeal No. 97 of 1989, which was dismissed on the grounds
that the appeal was premature, the impugned notification did not provide any cause of action to
the appellant and that under section 24 of the Act, the Government was competent to absorb
respondent No. 4 retrospectively with effect from 31-7-1985. Leave was granted to examine the
following contentions which were urged by the learned counsel for the appellant:--
(1) A civil servant aggrieved by notification which adversely affects his seniority in a particular
cadre has locus standi to question the validity of such notification.
(2) The operation of section 4 of the Sindh Service Tribunals Act is not limited to only a
seniority list but covers any other final order issued by the departmental authority affecting the
seniority of a civil servant.
(3) Under section 24 of the Sindh Civil Servants Act, the Provincial Government cannot pass any
order in favour of a civil servant in violation of statutory rules adversely affecting the rights and
privileges of other civil servants conferred by law."
7. The arguments were heard and the case was reserved for judgment on 6-5-1992 but since it
was thought that the appeal required further hearing, on 1-8-1992 the Court ordered further
hearing of the appeal after re-opening of the Court after summer vacation on the following
points:-
(i) What is the status of a person on deputation in the department in which he works on
deputation?
(ii) Whether a person on deputation can be absorbed permanently in the department with effect
from the date of entry on deputation?
(iii) What was the position inter se between the appellant and respondent No. 4 as to their
induction in Grade-17 in the respective Universities?
(iv) On what date respondent No. 4 was promoted/confirmed in Grade-18 in Sindh University?
(v) Whether the impugned order of absorption of respondent No. 4 with effect from the date of
his coming on deputation could have been passed under section 24 of the Sindh Civil Servants
Act, 1973.
8. Mr. Abdul Hafeez Memon, learned counsel appearing for the appellant, has vehemently
contended that the status of respondent No. 4 in the Education Department was of an ad hoc
appointee and, therefore, he could not have been absorbed in the Department retrospectively
particularly after having been absorbed with immediate effect under Notification dated 8-4-1986.
His further submission was that section 24 of the Act does not empower the Government to act
contrary to law and statutory rules.
On the other hand, Mr. Fakhruddin G. Ebrahim, learned counsel appearing for respondent No. 4,
has urged that under section 24 of the Act, the Government enjoys plenary power entitling it to
pass any order if it considers just and proper in deviation of any statutory rules. According to
him, since respondent No. 4 was taken on deputation as an Executive Engineer when the
appellant was working as an Assistant Executive Engineer,, it was just and proper to have
absorbed respondent No. 4 retrospectively from the date when he joined the Department. His
further submission was that the above power of the Government cannot be curtailed or controlled
by the Court.
9. It may be pertinent to ascertain what was the status of respondent No.4 in the Education
Department as a deputationist. In this regard, it may be appropriate to refer to the definition of
"civil servant" given in clause (b) of section 2 of the Act, which reads as follows:-
"(b) "civil servant" means a person who is a member of a civil service of the Province or holds a
civil post in connection with the affairs of the Province, but does not include--
(i) a person who is on deputation to the Province from the Federation or any other Province or
authority; or
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from
contingencies; or
(iii) a person who is a `worker' or "workman" as defined in the Factories Act, 1934 (XXV of
1934), or the Workmen's Compensation Act, 1923 (VIII of 1923);"
A perusal of the above-quoted definition of "civil servant" indicates that a person who is a
member of a civil service of the Province or holds a civil post in connection with the affairs of
the Province, is a civil servant, but a person who is on deputation to the Province from the
Federation or any other Province or authority is not a civil servant for the purpose of the Act and
so also a person on contract basis or a person who is a `worker' or "workman" under the
Factories Act, 1934, or the Workmen's Compensation Act, 1923, as they have been excluded
from the above definition of `civil servant'.
10. It may also be pertinent to refer to the definition of the term "ad hoc appointment" given in
clause (a) of section 2 of the Act, which provides that it means that appointment of a duly
qualified person made otherwise than in accordance with the prescribed method of recruitment,
pending the recruitment in accordance with such method.
11. I may also refer to the other provisions of the Act. Section 3 lays down that the conditions of
civil servants shall be provided in the Act and the Rules. Whereas, section 4 provides that every
civil servant shall hold office during the pleasure of the Government. Section 5 deals with the
appointments and provides that appointment to a civil service of a Province or a civil post in
connection with the affairs of the Province shall be made in the prescribed manner by
Government or person authorised by it in that behalf. Sections 6 and 7 deal with the probation
and confirmation. Section 8 covers seniority. It may be advantageous to reproduce the same
which reads as follows:-
"8. Seniority.--(l) For proper administration of a service, cadre or grade, the appointing authority
shall cause a seniority list of the members for the time being of such service, cadre or grade to be
prepared, but nothing herein contained shall be construed to confer any vested right to a
particular seniority in such service, cadre or grade, as the case may be. .
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in
relation to other civil servants belonging to the same service or grade, whether serving in the
same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, grade or post shall be determined as may be
prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of
regular appointment to a post in that grade:
Provided that civil servants who are selected for promotion to a higher grade in one batch shall,
on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
A plain reading of the above section indicates that subsection (1) for proper administration of a
service, cadre or grade envisages the preparation of a seniority list by the appointing authority
but at the same time it provides that nothing contained therein shall be construed to confer any
vested right to a particular seniority in such service, cadre or grade as the case may be.
Subsection (2) of the above section lays down that subject to subsection (1) seniority of a civil
servant shall be reckoned in relation to other civil servants belonging to the same service or
grade, whether serving in the same department or office or not in the manner as may be
prescribed. Furthermore, subsection (3) provides that seniority on initial appointment to a
service, grade or post shall be determined as may be prescribed. Whereas, subsection (4) lays
down that seniority in the grade to which a civil servant is promoted shall take effect from the
date of regular appointment to a post in that grade. Proviso to the above subsection provides that
civil servants who are selected for promotion to a higher grade in one batch shall on their
promotion to the higher grade, retain their inter se seniority in the lower grade.
Sections 9, 10 and 11 provide for promotion, posting and transfers, and termination of service,
respectively. Whereas, section 12 lays down that a civil servant appointed to a higher post or
grade ad hoc or temporary or officiating basis shall be liable to reversion to his lower post or
grade without notice.
It is not necessary to refer to the other provisions of the Act except section 24 which reads as
follows:-
"24. Saving.---Nothing in this Act or in any rule shall be construed to limit or abridge power of
Government to deal with the case of any civil servant in such manner as may appear to it to be
just and equitable:
Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall'
not be dealt with in any manner less favourable to him than that provided by this Act or such
rule."
A plain reading of above section indicates that it provides that nothing in the Act or in any rule
shall be construed to limit or abridge power of Government to deal with the case of any civil
servant in such manner as may appear to it to be just and equitable. However, the proviso to the
above section lays down that where the Act or any rule is applicable to the case of a civil servant,
the case shall not be dealt with in any manner less favourable to him than that provided by the
Act or such rule.
12. It may be appropriate to refer at this juncture Sindh Civil Servants (Appointment, Promotion
and Transfer)" Rules, 1974, hereinafter referred to as the Rules of 1974. Rule 3 of the same
provides that the appointment to posts shall be made by any of the two methods, namely, by (i)
promotion and transfer in accordance with Part II of the above Rules, and (ii) initial appointment
in accordance with Part III of the said Rules. It may also be stated that Rule 7 of the Rules of
1974 provides that promotions and transfers to posts to Grads 2 to 18 shall be made on the
recommendation of the appropriate Departmental Promotion Committee and promotions and
transfers to posts in Grade-19 and above shall be made on the recommendation of the Provincial
Selection Board. The proviso to the above Rule lays down that the posts in Grade-18 which carry
a special pay would also be referred to the Provincial Selection Board if proposed to be filled by
promotion or transfer.
It may further be stated that Rule 10 of the Rules of 1974 provides that the initial appointment to
posts in Grades 16 to 22 shall be made if the posts,--
(a) fall within the purview of the Commission, on the basis of examination or test to be
conducted by the Commission;
(b) do not fall within the purview of the Commission, in the manner as may be determined by the
Government.
Whereas, Rule 11 of the Rules of 1974 lays down that initial appointment to posts in Grades 3 to
15 shall be made on the recommendation of the Departmental Selection Committee if the
vacancies in these Grades have been advertised in newspapers.
13. I may also refer to the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules,
1975, hereinafter referred to as the Rules of 1975. Rule 10 of the same provides that subject to
the provision of Rule 11, the seniority of a civil servant shall be reckoned from the date of his
regular appointment. It further provides that no appointment made on ad hoc basis shall be
regularised retrospectively.
14. Since respondent No. 4 was to be permanently absorbed in Grade-18 post, the normal
procedure for appointment was through Public Service Commission. Furthermore as respondent
No. 4's status as a deputationist m the Education Department was of an ad hoc appointee or a
temporary appointee, he could not have been confirmed retrospectively as has been held by the
Tribunal in the impugned judgment in view of clause (2) of Rule 10 of the Rules of 1975. No
doubt under section 24 of the Act, the Government enjoys plenary power to deal with the case of
any civil servant in such manner as may appear to it to be just and equitable notwithstanding any
provision of the Act and the Rules. But the above power is to be exercised fairly, reasonably and
in a manner which may not prejudice or take away any interest or right of a third person. It may
be observed that till the time respondent No. 4 was absorbed permanently through the aforesaid
notification dated 8-4-1986, he did not enjoy the status of a civil servant as he was not covered
by the definition of "civil servant" defined by above clause (b) of section 2 of the Act, being a
deputationist and, therefore, till then, above section 24 could not have been pressed into service
as it refers to a civil servant and not to a person who was an employee of a corporate body like a
University. It may be stated that even Mr. Fakhruddin G. Ebrahim, learned counsel for
respondent No. 4, did not claim that the status of respondent No. 4 was of a civil servant prior to
his absorption in the Education Department.
14-A. As pointed out hereinabove, the appointment of respondent No. 4 by permanent absorption
in the Education Department was in a manner which was contrary to the statutory rules. The
question, therefore, arises, as to whether section 24 of the Act has been rightly pressed into
service in the case in hand. In this regard, it may be pertinent to refer to the case of Muhammad
Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to
Government of the Punjab, Lahore and 2 others (PLD 1991 SC 35), wherein section 23 of the
Punjab Civil Servants Act (though referred to in the above judgment as section 22), which
corresponds to section 24 of the Act, was the subject-matter of interpretation. In the above case,
the facts were that the appellants were recruited directly in 197.1 through the Punjab Public
Service Commission as Assistant Engineers in the service of Engineers, Buildings and Roads
(Class-I). Respondent No. 2 was recruited in the year 1975 by the same process and according to
the rules and law applicable. However, previous to his above induction, he had worked as an
Assistant Engineer in the Army Corp. of Engineers and was on duty on Karakoram Highway
Project. On 18-7-1979, the following order was issued by the Secretary of the Communication
and Works Department:-
"The Governor of the Punjab is pleased to allow Capt. (Retd.) Abdul Qayyum, Assistant
Engineer, presently posted as S.D.O., 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)4-2/77, dated 15-7-1978, to a
place between M/s. Muhammad Farooq Chohan (serial No. 2) and Mr. Muhammad Ashraf
Dogar (serial No. 3) in the said list. The Governor of the Punjab is further pleased to relax the
condition of 5 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."
The above order was passed pursuant to the representation made by respondent No. 2. The
appellants contested the above order as because of the same they had become j~nor to above
respondent No. 2, though they were inducted in service prior to respondent No. 2 as pointed out
hereinabove. However, they lost before the Service Tribunal. An appeal with the leave of this
Court was brought before this Court. Shafiur Rahman, J., who rendered the leading judgment,
highlighted the factum that sections 8 of the Federal Civil Servants Act, 1973, North-West
Frontier Province Civil Servants Act, 1973, and Sindh Civil Servants Act, 1973, which deal with
the question of seniority, provide that "nothing herein contained shall be construed to confer any
vested right to a particular seniority in such service, cadre or grade, as the case may be",
whereas, section 7 of the Punjab Civil Servants Act, 1974, which corresponds with the above
sections of the above acts, does not contain the above words. On the basis of the above
difference in language it was concluded that "the obvious conclusion is that in the Punjab the
seniority continues to be a vested right of a civil servant, elsewhere it did not". The judgment of
the Service Tribunal was set aside and the service appeal was 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 form 21-10-1969 to 26-2-1975 in the Army was declared to be ultra vires
section 23 of the Punjab Civil Servants Act and of no legal effect but the above length of service
was reckoned for the purposes of pay and pension.
Rustam S. Sidhwa, J., who appended his separate note, inter alia dilated upon section 23 of the
Punjab Civil Servants Act, 1974, and concluded as follows:--
"Surely, the object of section 22 of the Punjab Civil Servants Act, 1974, was not to enable the
Governor to flagrantly strike down the very law he was to uphold by its exercise. Still further,
the order of the Governor relaxing the condition of 5 years service in the Department as Assistant
Engineer for promotion of the said respondent No. 2 to the post of Executive Engineer out of
turn, contravenes the rights of others because the respondent has been given forced
seniority. The grant of seniority or promotion under section 22, unless it meets the
strict test of being just and fair, can only be a colourable violation of the law under the guise of
its exercise, which cannot be permitted. Discretion, even where outwardly appearing as absolute,
will always be treated as qualified by the terms and spirit of the provision in which it occurs and
by the object of the law. See Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC
166, where the President of Pakistan's exercise of discretionary powers under Article 58(2) of the
Constitution were struck down for violating the terms and spirit of that Article. The order of the
learned Governor in the instant case not only violates the law declared by this Court, which
strikes down retrospective regularisation, but directly contravenes Rule 8 of the 1967 and 1974
Rules and adversely affects the seniority and right of promotion of 1974 batch of direct inductees
and I would, therefore, with profound respect to the learned Governor, declare that the same
deserves to be set aside:"
15. Respondent No. 2 in the above case, filed a review petition against the above judgment,
which was disposed of through a judgment under the title Capt. (Retd.) Abdul Qayyum,
Executive Engineer v. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184). While
dismissing the above review petition, Shafiur Rahman, J. and Dr. Nasim Hasan Shah, J. have
discussed as to the scope of above section 23, as under:-
SHAFIUR RAHMAN, J.---"6. As regards the residual remedial power of the Govenor
contained in section 23 of the Punjab Civil Servants Act, the bounty and the generosity of the
Governor has been placed under a limit. It is not to be so exercised so as to infringe, impair or
curtail any of the statutory rights of the beneficiary himself. This is the recognition and effect of
Article 4 and Article 240 of the Constitution. The argument that the exercise of this power can
ride rough over the statutory rights of others would amount to negation of rule of law, going
beyond the Constitutional parameters, subordinating of statutory rights to executive fiat. What
follows is that like all authorities, the Governor in the exercise of residual power is as much to be
guided and bound by the law as anyone else except that his bounty and generosity has been made
limitless. He can grant as much benefits as he wants to and considers just and fair but not at the
cost of others, not even at the slightest cost of the statutory rights already granted to the
beneficiary. This is a power of redressal, of providing a relief and not of impairing statutory
rights of anyone."
NASIM HASAN SHAH, J.--But as rightly pointed out by my learned brother Shafiur Rahman,
J., the residual power conferred on the Governor under section 23 of the Punjab Civil Servants
Act, 1974, extends only to passing a just and equitable order which may benefit the aggrieved
civil servant to alleviate his hardship but such an order cannot impair any of the statutory rights
vesting in other civil servants. Thus, in the Punjab where seniority continues to be a vested right,
the seniority position of other civil servants cannot be affected while undoing the hardship of
another civil servant inasmuch. as section 23 confers a power of redressal which does not extend
to impairing the statutory rights of others."
16. The facts of the above case are distinguishable from the instant case, inasmuch as in the
above case, the service rendered in the Army was treated as service in the Department which is
not the case involved in the case in hand, but the same is relevant on the scope of section 23 of
the Punjab Civil Servants Act, 1974, which corresponds to section 24 of the Act. The order of
declining leave to appeal in the case of S. Habib Haider v. The Secretary-General, Ministry of
Interior, Islamabad and 14 others 1991 SCMR 1505, in my view, on all fours is applicable to the
instant case. The facts in the above case were that the petitioner was appointed in the year 1974
as Field Investigating Officer (Grade-11) in the Pakistan Narcotics Control Board. He moved
through his department for serving the Federal Investigating Agency. In May, 1977, he was
taken as a deputationist in the F.IA. He was absorbed in the F.I.A. as an Inspector in the year
1982. In the seniority list prepared and circulated in 1984, he was given his place on the date of
entry in F.I.A. i.e. his permanent absorption on 12-5-1982. He contested the above seniority list
and claimed seniority from 9-5-1977 when he was brought in the F.I.A. on deputation. His above
claim was turned down by the Department. Thereupon, he filed a service appeal which was
rejected by the Service Tribunal. Against the above judgment, a petition for leave to appeal was
filed, which was declined through the above order. While dismissing the petition for leave, the
following observations were made:-
"5. A reference to Rules 3 and 18 of the Federal Investigation Agency (Appointment, Promotion
and Transfer) Rules makes it clear that the appointment by transfer could only be on deputation
for a specified period and under Rule 18 direct appointment could be made only on the
recommendation of the Departmental Selection Committee after the vacancies had been
advertised and the candidates interviewed. The procedure followed in the case of the
appointment of the petitioner in 1977 was not one under Rule 18, but under Rule 3. It was only
in 1982 that he was appointed to the Federal Investigation Agency and he cannot take his case
earlier to that for reckoning his seniority."
17. In the above reported case, F.IA. while taking the petitioner on deputation, made it clear that
he was temporary and on deputation, whereas in the case in hand though the notification dated
11-8-1985 states that respondent No. 4 was taken with immediate effect on deputation for a
period of two years, it was not stated that it was a temporary appointment as it was done in the
above reported case. In my view, the above variation does not change the legal position.
Respondent No. 4 was taken on deputation for a period of two years' and, therefore, it was
evident that he was in the Education Department on temporary and ad hoc basis till the time he
was to be permanently absorbed. As pointed out hereinabove, it was not even the case of the
learned counsel for respondent No. 4, that prior to the issuance of the above Notification dated
8-4-1986 respondent No. 4 had become civil servant.
18. In my view, the exercise of power by the Government under section 24 of the Act for
absorbing respondent No. 4 with retrospective effect i.e. with effect from 31-7-1985 after the
expiry of nearly three years was not warranted by fact and law. It may be pointed out that
respondent No. 4 in his above application dated 2-12-1985 did not request for his absorption in
the Education Department with retrospective effect. Similarly, in the summary placed before the
then Chief Minister, on 18-1-1986 (at page 7 of Part II of the paper book), it was not
recommended that respondent No. 4 be absorbed with retrospective effect. Consequently, the
above notification dated 8-4-1986 absorbed respondent No. 4 in the Education Department with
immediate effect and not retrospectively. It seems that respondent No. 4 did not protest or make
claim for getting himself absorbed retrospectively till the filing of his application after the expiry
of nearly three years on 22-3-1989, to the then Chief Minister Sindh. The above application was
not entertainable after the expiry of such a long period. The summary prepared on the basis of
the above application (at page 11 of Part II of the paper book) apparently does not reflect correct
factual position inasmuch as it has been stated in the same that "This had definitely placed Mr.
Akbar Hussain Rashdi in a disadvantageous position, because meanwhile some Junior Assistant
Engineers of the Department who, at the time of Mr. Rashdi's induction in Education Department
were not eligible for promotion on account of their not having rendered the prescribed length of
service i.e. 5 years whereas Mr. Rashdi was already in B-18 when he joined the Education
Department".
19. Factually the appellant had completed his five years service on 1-4-1985 as he was appointed
as Assistant Executive Engineer in Grade-17 through the Public Service Commission with effect
from 2-4-1982 as pointed out hereinabove and, therefore, he was very much eligible for
promotion when respondent No. 4 was taken on deputation on 31-7-1985. There is also no
foundation to make averment in the above summary that the Department intended initially to
absorb respondent No. 4 retrospectively as neither respondent No. 4 in his above application
dated 2-12-1985 which was filed after expiry of about four months from having joined as a
deputationist, claimed absorption retrospectively nor this was so stated in the above first
summary as pointed out hereinabove. I am, therefore, of the view that the exercise of power by
the Government under section 24 of the Act in the present case does not fall within the
parameters indicated in the above judgments in the case of Muhammad Iqbal Khokhar and others
(supra) and the case of Capt. (Retd.) Abdul Qayyum (supra), as the impugned order cannot be
treated as just, fair and equitable. 1t is true that in section 8 of the Act it has been provided that a
civil servant has no vested right in the seniority. In my view, the question in the present case is
not simplicitcr fixation of seniority inter se between the appellant and respondent No. 4, but the
point in issue is, as to whether respondent No. 4 could have been permanently absorbed in the
Education Department with retrospective effect by virtue of section 24 of the Act, which
admittedly had adversely affected the appellant as to his prospects of future promotion. The
appellant may not have any vested right in a particular seniority in view of above section 8 of the
Act but nevertheless, he has sufficient locus standi to insist upon that the Government should act
in accordance with Service Laws/Rules and not in contravention thereof as to affect him
adversely, in purpoted exercise of its plenary power under section 24 of the Act.
20. According to the finding of the Tribunal, even the permanent absorption of respondent No. 4
in the Education Department without the clearance by the Departmental Selection Committee i.e.
D.F.C. was irregular and could not have been done even by invoking Section 24 of the Act. The
relevant portion of the judgment of the Tribunal reads as follows:-
"In the light of above authorities, we are inclined to the view that it would not be unjustified if
the Government in exercise of its plenary jurisdiction under section 24 hereinabove passed an
order seeking to improve the private respondent's seniority vis-a-vis the appellant by allowing
him the benefit of higher positions that he had held prior to his absorption in Government
service. But this could be done only after the private respondent's absorption (appointment) in
Government service was regularised in accordance with the prescribed procedure. For
compliance of this requirement, all that is needed is to obtain the approval of Selection
Committee i.e. D.P.C. as regards fitness of the private respondent for the post of Executive
Engineer. In our opinion neither section 24 hereinabove nor the aforementioned precedent cases
seem to concede power to the Government to substitute itself in place of the Selection
Committee/Board for the purposes of determining the fitness of the private respondent for the job
in question. If such power is allowed, it may be misused and thereby great unnecessary
misunderstanding against the Government. Moreover if power of making selections on merits is
vested in Government it is likely to be repeatedly used rendering the selection authorities such as
Public Service Commission and Departmental Committees/Board absolutely redundant."
21. The above conclusion lends support to my view that the exercise of power by the
Government under section 24 of the Act after the expiry of more than three years from the date
of issuance of notification dated 8-4-1986 absorbing respondent No. 4 with immediate effect for
giving retrospective absorption with effect from 31-7-1985 was not warranted by facts and law.
The factum that respondent No. 4 had become Executive Engineer in the Sindh University or that
he was brought on deputation in the Education Department on 31-7-1985 as an Executive
Engineer (Grade-18) when the appellant was only Assistant Executive Engineer in Grade-17 is
of no consequence, as admittedly the appellant joined as an Assistant Executive Engineer,
Agricultural University, Tando Jam, about two weeks before respondent No. 4 had joined Sindh
University. Furthermore, the appellant joined the Education Department on regular basis through
the Public Service Commission with effect from 2-4-1982 and, therefore, in normal course upon
the expiry of five years period on 1-4-1987, the appellant had become eligible for promotion as
Executive Engineer in Grade-18 as five years length of service had been treated as the
requirement for promotion in the above two summaries placed before the then Chief Minister.
This was so provided even under the late West Pakistan Service of Civil Engineers (Class-I)
Rules, 1969 as stated in the case of Muhammad Iqbal Khokhar (supra). However, he was
actually promoted as Executive Engineer with effect from 11-12-1985 on regular basis i.e. before
respondent No. 4 was permanently absorbed in the Education Department upon his application
dated 2-12-1985. In my view, till respondent No. 4 was permanently absorbed in the Education
Department, he had no lien or right in the Education Department except as a deputationist liable
to be reverted back upon the expiry of two years period or earlier in case it was so decided by the
competent authority. Respondent No. 4's case was not a case of hardship but he voluntarily opted
to join the Education Department. It seems that recently through a Notification dated 14-9-1992,
he has been appointed by transfer with immediate effect as Superintending Engineer (BPS-19) in
the Communication and Works Department. The Government is free to grant any benefit to
respondent No. 4 under section 24 of the Act so long as exercise of such power is just and
equitable and it does not, in any way, affect or prejudice a third person. In the above case of
Muhammad Iqbal Khokhar (Supra), this Court maintained the order of Government of Punjab of
allowing the benefit of Army Service towards pay and pension but struck down the portion of the
order which purported to treat his Army service for the purpose of reckoning his seniority in the
department as that portion had affected the right of the appellants.
22. The upshot of the above discussion is that I am inclined to allow the above appeal to the
extent that respondent No. 4's absorption in the Education Department with retrospective effect
is declared as not sustainable in law.
ORDER OF THE COURT
In terms of the majority view, the appeal is allowed with no order as to costs to the extent of
declaring that respondent No. 4's absorption in the Education Department with retrospective
effect is not sustainable in law.
M.BA./A-994/S Order accordingly.