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SUPREME COURT OF AZAD JAMMU AND KASHMIR

[Appellate/Review Jurisdiction]

PRESENT:
Mohammad Azam Khan, C J
Ch. Muhammad Ibrahim Zia, J.
Sardar Muhammad Sadiq Khan, J.
Civil Appeal No. 44 of 2010
(PLA filed on 9.10.2009)
1.

Syed

Subtain

Presently

Hussain

posted

at

Kazmi,
Bagh

Tehsildar,

Development

Authority.
2.

Muhammad Ismail, Tehsildar, presently posted


at Patikha, Sub Division.

3.

Abdul Haleem, Tehsildar, presently posted at


Hajira, District Poonch.
. ASPPELLANTS

VERSUS
1.

Syed Mumtaz Hussain Kazmi, Naib Tehsildar,


Presently

posted

at

Office

of

Deputy

Commissioner, Bagh, Haveli.


2.

Syed Nusrat Hussain Shah, Naib Tehsildar,


Presently posted as Naib Tehsildar, Bagh.

3.

Azad

Government

RESPONDENTS

through

its

Chief

Secretary, Muzaffarabad.
4.

Board of Revenue through its Secretary, New


Secretariat, Muzaffarabad.

5.

Selection Committee through its Chairman


having

his

Muzaffarabad.

office

at

New

Secretariat,

6.

Commissioner Muzaffarabad Division, having


his office at old Secretariat, Muzaffarabad.

PROFORMA-RESPONDENTS

(On appeal from the Judgment of the Service Tribunal


dated 13.8.2009 in service appeal No. 365 of 2009)
-----------FOR THE APPELLANTS:

Kh. M. Nasim, Advocate.

FOR THE RESPONDENTS:

Sardar Karam Dad Khan,


Advocate.

AMICUS CURIAE:

M/S Abdul Rashid Abbasi


and Raja Muhammad
Hanif Khan, Advocates.

Civil Review No. 4 of 2009


(Filed on 2.3.2009)
1. Manzoor

Maqbool,

Muzaffarabad,

Divisional

Forest

Forest

Division,

Bank

Officer,
Road,

Muzaffarabad.
2. Sh. Abdul

Hameed,

Divisional

Forest

Officer,

Range Land Central Plate, Muzaffarabad.


. PETITIONERS

VERSUS
1.

Asad

Mehmood

Malik,

Divisional

Forest

Officer, presently posted at Bagh, Tehsil &


District Bagh.

2.

RESPONDENT

Azad Jammu & Kashmir Government through


its Chief Secretary, having his office at New
Secretariat
Muzaffarabad.

Complex,

Lower

Chatter,

3.

Minister Forest, Azad Jammu and Kashmir,


having his office at Ministers Block, Lower
Chatter, Muzaffarabad.

4.

Secretary Forest, Azad Jammu & Kashmir


Govt.

having

his

office

at

New

Civil

Secretariat Complex, Muzaffarabad.

PROFORMA-RESPONDENTS

(In the matter of review from the judgment of this


Court dated 22.1.2009 in civil appeal No. 47 of 2007)
-----------FOR THE PETITIONERS:

Raja Muhammad
Khan, Advocate.

Hanif

FOR THE RESPONDENTS:

Sardar Abdul Sammie


Khan, Advocate.

AMICUS CURIAE:

Mr. Abdul Rashid Abbasi


Advocate.

Date of hearing: 5.3.2013.


JUDGMENT
Ch. Muhammad Ibrahim Zia, J. The
captioned appeal No. 44/2010 by leave of the Court is
addressed against the judgment of Service Tribunal
dated

13.8.2009

whereby

appeal

filed

by

the

contestant respondents has been accepted. Whereas


the review petition No.4/2009 has been filed for review
of

the judgment of

this Court dated 22.1.2009,

whereby appeal filed by respondent No.1 has been


accepted.

Having

involved

the

common

legal

proposition, we propose to dispose of both of these


cases through this consolidated judgment.
2.

The

controversy in

appeal

No.

44/2010

relates to inter-se seniority of civil servants of the


Revenue Department. The respondents challenged the
seniority list issued by the Board of Revenue on
31.7.2007 through an appeal in the Service Tribunal.
According to their version, they were inducted into
service as Naib Tehsildar, B-14 vide orders dated
4.10.2004 and 14.10.2004, respectively through initial
recruitment.

Whereas

the

appellants

were

firstly

promoted on officiating basis and later on regularly


appointed by promotion as Naib Tehsildars vide order
dated 19.3.2007. They were given retrospective effect
of promotion from the date of their officiating/current
charge appointment due to which they have been
shown senior to them. The learned Service Tribunal
accepted the appeal filed by respondents herein

and

declared them senior on the basis of the date of regular


promotion

of

appellants

i.e

19.3.2007.

In

this

perspective this appeal is filed.


3.

The facts of the review petition No. 4/2009

are that respondent No.1

was appointed as Assistant

Conservator of Forests vide order dated 10.4.2002, on


the recommendations of Public Service Commission
after completion of two years course of M.Sc. Forestry
from

Pakistan

Forests

Institute,

Peshawar.

The

petitioners were promoted as Assistant Conservator of


Forests through Notification dated 12.3.2005 on the
recommendations of the Selection Board No.3 with
retrospective effect from 10.12.1997 and 1.2.2001.
Respondent

No.1

assailed

the

notification

dated

12.3.2005 before the Service Tribunal but his appeal


was dismissed. The findings of Service Tribunal

were

challenged in appeal which was accepted by this Court


through the judgment under review

whereby while

vacating the judgment of Service Tribunal, grant of


anti-dated promotion/seniority to the petitioners has
been set-aside.
4.

Kh. Muhammad Nasim Advocate, the learned

counsel for the appellants submitted that the appellants


have been continuously officiating in the office. They
were duly entitled to promotion but due to non-holding
of selection boards meeting or initiation of process on
the part of the authority, they cannot be penalized. He
further submitted that the appellants promotion will be

treated

as

regular

from

the

dates

of

their

retrospective/anti-dated promotion and not from the


date

of

issuance

of

the

promotion

order.

To

substantiate his arguments, he has referred to section


6 of the Civil Servant Act, 1976 (hereinafter to be
referred as the Act) and submitted that under this
statutory provision, confirmation of service shall take
effect from the date of continuous officiation. Thus, in
the light of this statutory provision, the appellants are
senior and the Service Tribunal has wrongly passed the
impugned judgment which is not sustainable. He has
referred to the cases reported as Dr. Khawaja Mushtaq
Ahmed vs. Azad Govt. & 5 others, [2001 SCR 170], and
Ahmed Latif Qureshi vs. Controller of Examination,
Board of Intermediate and Secondary Education Lahore
and another, [PLD 1994 Lah. 3], in support of his
arguments.
5.

Raja Muhammad Hanif Khan Advocate, the

learned counsel for the petitioners in review petition


submitted that in the light of peculiar facts of the case,
the judgment under review calls for modification. He
submitted that it is the prerogative of the Government
to give any civil servant the benefit of retrospective or

anti-dated
judgment

promotion
it

also

whereas

appears

that

in

the impugned

the

retrospective

promotion order has also been set-aside. According to


celebrated

principle

of

law

and

previous

pronouncements of this Court, retrospective promotion


if is justified in the light of facts of the case, cannot be
recalled. Therefore, this is an error apparent on the
face of record. He further submitted that according to
spirit of some of the judgments of this Court, if a civil
servant has been deprived of the

right of promotion

due to no fault on his part, subsequently,

if he is

promoted with retrospective effect, in such case,


seniority of such civil servant shall be determined from
the date when the promotion was due. He submitted
that as the anti-dated promotions are granted under
the provisions of section 22 of the Act, on just and
equitable grounds, therefore, in this case, as the
petitioners were holding the post; they were not
promoted timely on regular basis due to inaction of the
departmental authority, hence, for maintaining the
justice and equity, they deserve seniority from the date
of anti-dated promotion. However, he

while assisting

the Court in other case as an AMICUS CURIAE, very

gracefully

conceded

that

in

some

of

the

pronouncements of superior Courts, trend is against


giving the seniority from the date of

anti-dated

promotion and same is only declared effective for the


monitory benefits and other benefits excluding the
benefit of seniority. He referred to the cases reported
as Aslam Warraich and others vs. Secretary, Planning
and Development Division and 2 others, [1991 SCMR
2330] and Sqn. Ldr. Farooq Janjua vs. Secretary M/O
Defence and others, [2004 PLC (CS) 612] in support of
this proposition. He further submitted that the term
regular appointment is defined in subsection 2 of
section

of

appointments

the

Act

which

which

are

made

speaks
in

the

that

the

prescribed

manner shall be deemed as regular appointments.


6.

Conversely,

Sardar

Karam

Dad

Khan

Advocate, the learned counsel for the respondents in


appeal strongly opposed the appeal and submitted that
the impugned judgment of the Service Tribunal is quite
consistent with the principle of statutory law, hence,
does not call for any interference. He submitted that
according to the statutory provision, for the purpose of
seniority, the only regular service can be considered. In

case of a civil servant appointed on officiating, current


charge or acting charge basis, such a service of civil
servant cannot be counted for the purpose of seniority.
He submitted that on this point, statutory provisions
are very much

clear which

speak that all

such

appointments neither are regular nor create any right


or interest

for the purpose of regular promotion. He

placed reliance upon the cases reported as Muhammad


Arshad Khan Tehsildar District Bagh & others vs. Azad
Govt. of the State of J&K through its Chief Secretary &
others, [PLJ 2000 SC (AJ&K) 88],

Federation of

Pakistan and others vs. Rais Khan, [1993 SCMR 609],


Burhan Ahmed vs. Pakistan Post Office, Islamabad
through Director General and 7 others, [1994 PLC
(C.S.) 884], Dr. Shoukat Tanveer vs. Azad Govt. &
another, [2003 SCR 177], Raja Muhammad Sohrab,
Deputy Director Planning v. Azad Jammu & Kashmir
Government through Chief Secretary and 6 others,
[2002 PLC (C.S.) 1138] and Inayatullah Chaudhry vs.
Azad Jammu and Kashmir Government and five others,
[1990 PSC 1035], in support of his version.
7.

Sardar Abdul Sammie Khan Advocate, the

learned counsel for the respondent in review petition

10

strongly opposed the review and submitted that the


grounds agitated in the review petition amounts to
rehearing and reopening the case which is beyond the
scope of review. He submitted that according to
celebrated principle of law, review petition can only be
entertained if there is error or mistake apparent on the
face of record. No such error or mistake has been
pointed out by the petitioners, therefore, this review
petition is not competent. He further submitted that the
judgment under review is quite in accordance with the
statutory provisions and principles of law enunciated by
the superior Courts of Pakistan and the Azad Jammu &
Kashmir,

therefore,

the

review

petition

has

no

substance.
8.

Mr. Abdul Rashid Abbasi, Senior Counsel,

while assisting the Court as AMICUS CURIAE, rendered


valuable

assistance.

He

regular appointment

submitted

that

the

term

and continuous appointment

have not been defined by the statute. For the purpose


of

seniority,

the

moot

consideration

is

regular

appointment. Regular appointment, whether made by


initial recruitment or otherwise
appointment against the post

means permanent
after

following the

11

prescribed mode and it does not include any ad-hoc,


acting charge or officiating appointment. He submitted
that in this case, most relevant provision is sub rule 2
of rule 8 of the Azad Jammu & Kashmir Civil Servants,
(Appointment and Terms & Conditions of Service) Rules
1977, (hereinafter to be referred as Rules 1977). While
summarizing

the

arguments,

he

submitted

that

according to statutory provision, seniority cannot be


counted

from

the

retrospective

or

anti-dated

promotion. It can only be counted from the date of


regular appointment by initial recruitment or otherwise.
He referred to the cases reported as Professor Dr. Raja
Muhammad Ayub Khan v. Azad Jammu and Kashmir
Government and 4 others, [PLJ 1990 SC (AJ&K) 29],
Ghulam

Rasool

and

Balochistan

and

Muhammad

Siddique

others

others,

vs.

[2002

Ahmed

Government
PLC

Khan

(CS)
vs.

of
47],

Pakistan

Railways through Financial Advisor and Chief Accounts


Officer, Pakistan Railways, Lahore and others, [1997
SCMR 1514], Nazar Ahmed Khan vs. Syed Sabir
Hussain Naqvi and 3 others, [2000 SCR 580], Ch.
Abdul Latif & 2 others vs. Secretary AJ&K Council & 2
others,[1999 SCR 222], Syed Zawar Hussain Naqvi vs.

12

Registrar of AJ&K University & others [2006 SCR 15],


Raja Muhammad Iqbal and others vs. The Additional
Chief Secretary Government of the Punjab, [1982
SCMR 971] Muhammad Tufail and 2 others vs. The
State, [1995 SCMR 1158] and Messrs Swat Textile Mills
Ltd. Vs. Pakistan through Secretary, Ministry of Finance
Islamabad, [1985 SCMR 517] in support of his version.
9.

We have heard the learned counsel for the

parties as well as the AMICUS CURIAE and perused the


record. In the captioned cases, the first identical legal
proposition raised for determination is of inter-se
seniority among civil servants directly appointed to the
post and appointed otherwise. The next proposition
emerged from the facts of these cases is the effect of
retrospective promotion upon the inter-se seniority. To
resolve the

propositions, we would like to have a

survey of the statutory provisions relating to the


subject matter.
10.

The basic provision dealing with the seniority

is section 7 of the Act.


provision,

the

According to this statutory

seniority on

initial

appointment to

service, cadre, grade or post shall be determined

in

13

the prescribed manner. Whereas,


grade

the seniority in the

to which a civil servant is promoted shall take

effect from the date of regular appointment to the post


in that grade. The term regular appointment used in
this statutory provision is of vital importance. The
subsection (2) of section 2 of the Act, speaks that for
the purpose of this Act an appointment whether by
promotion or otherwise shall be deemed to have been
made on regular basis if it is made in the prescribed
manner. According to clause (i) subsection 1 of section
2 of the Act, prescribed means prescribed by rules.
Thus,

this statutory provision clearly convey that the

appointment whether by promotion or otherwise made


in prescribed manner shall be deemed on regular basis.
Under the provision of section 3 of the Act, the terms
and conditions of Civil Servant shall be as provided in
this Act and Rules made thereunder. When the scope of
legal term regular appointment hereinabove, is judged
in the light of the statutory provisions of the
juxtaposition with the Rules, 1977,
that

it

refers

only

to

the

Act in

it becomes clear

regular

permanent

appointment either; by initial recruitment, transfer or


promotion

excluding

the

appointments

on

acting

14

charge, current charge and

promotion on officiating

basis. Regarding these appointments, the statute itself


clarifies that these are not regular appointments. Rule
10-A, of the Rules, 1977 deals with the appointment on
acting charge basis.

Under sub rule 4 it has been

clarified that such appointment shall not be deemed to


have been made on regular basis for any purpose nor
shall confer any right for regular appointment. Sub rule
2 of this rule deals with the appointment on current
charge basis which clearly speaks that the appointment
shall come to an end on appointment of a person on
regular basis or on expiry of six months which ever is
earlier. Same like rule 13 of the Rules, 1977 deals with
the promotion on officiating basis. Sub rule 3 of this
rule speaks that the officiating promotion shall not
confer any right of promotion on regular basis but shall
be liable to be terminated as soon as the person
becomes

available for promotion on regular basis.

Thus, the cumulative examination of the statutory


provision dealing with the subject, it becomes clear that
the

term regular

appointment against a post or

grade used in section 7 of the civil servants Act, refers


only to the regular appointment made through initial

15

recruitment by transfer or by promotion and not


otherwise. In this respect, we find support from the
case reported as Syed Zawar Hussain Naqvi vs.
Registrar of AJ&K University & others, [2006 SCR 15]
wherein this Court has observed as under:5.

I have considered the respective

submissions of the learned counsel for


the parties in the light of record made
available by them with this Court. The
petitioner

even

though

was

holding

charge of post in BPS-17 on officiating


basis on 5.1.1994 but undoubtedly he
was confirmed against this post by the
competent authority vide order dated
16.8.2003 w.e.f 7.1.1995. It was laid
down

in

this

retrospective

order
effect

itself

that

the

given

to

the

petitioners appointment shall not affect


the promotion or seniority of any other
officer already working in BPS-17. The
legality of this order has not been
challenged

by

the

petitioner

even

though writ petition was filed by him


much after the said order. On the
recommendations of the selection board
respondent No.6 was recommended for
promotion to BPS-18 on 10.7.2002.
Finally vide notification dated 13.8.2002
he

was

promoted

to

BPS-18

w.e.f

16

10.7.2002. At that time the petitioner


could not be considered as he was
working on officiating basis against the
vacancy falling in BPS-17. The holder of
a post on ad-hoc basis, officiating basis
or

work

charge

basis

cannot

be

considered for further promotion until


and unless such officer is appointed
against the post he is holding on regular
basis. The petitioner, therefore, was not
eligible

to

selection

be

considered

board

when

the

recommended

respondent No.6 for further promotion


on

10.7.2002

and

the

said

recommendations were approved by the


syndicate on 27.7.2002 and later on
notified on 13.8.2002. Therefore, as
rightly held by the High Court in the
light of two judgments of this Court, the
petitioner could not be considered for
further promotion as he was holding the
post in BPS-17 on officiating basis.
Reference may be made to the reports
of

cases

titled

Zahid

Mehmood

vs.

Muhammad Sabir Khan, [PLJ 2000 SC


(AJ&K) 79] and Syed Shaukat Hussain
Gilani

vs.

Abdul

Rehman

Abbasi

&

others [1993 SCR 70].


(underlining is ours)

17

In another case reported as Sqn Ldr. Farooq Jamjua vs.


Secretary, M/O Defence and others, [2004 PLC (C.S.)
612], following observation has been made:7.

The

appellant

was

admittedly

retired from Pakistan Air Force w.e.f.


1.9.1990 with all pensionary benefits
and was appointed in CAA on 2.9.1990,
therefore, for all practical purposes he
would be deemed to be appointed in
CAA from the date of his induction
without taking the benefit of the period
of his deputation

in the CAA. It was

held in S.M. Farooq and others

vs.

Muhammad Yar Khan 1999 SCMR 1039


as under:(12). In the back ground of legal and
factual aspects and adverting to
real controversy it may be seen
that notification, dated 8th August
1995

unambiguously

status

of

Muhammad

disclosed

respondent
Khan

being

Yar
surplus

and his consequential absorption


as Deputy Controller (BPS 18) in
the department of tourist services.
Obviously in pursuance of above
notification said respondent had
assumed duty without any protest.
Therefore,
properly

his
fixed

seniority
keeping

in

was
view

18

provision of rule 3 (3) of Civil


Servants (Appointment, Promotion
and

Transfer)

Rules,

1973

as

amended and instructions issued


by

the

establishment

division

absorption

surplus

regarding

of

employees. Besides rule 4 of civil


servants

seniority

Rules,

1993

promulgated by notification S.R.O.


(I) /93, dated 28th Feb, 1993 lays
down

that

seniority

in

service,

cadre or post, by transfer shall


take effect from the date of regular
appointment of civil servant to said
service, cadre, or post. Therefore,
necessary corollary would be that
such

civil

servant

appointment

by

on

transfer

his
would

rank junior to those who were


already

serving

in

permanent

capacity in the same grad. This is


in consonance with principle of
justice

and

fair

play

because

service rights of employees in the


absence of any rules cannot be
normally

affected by out side

introduction. The respondent No.1


Muhammad Yar Khan till date of
his

absorption

continued

to

be

member of his parent service or


cadre.

Therefore,

unless

19

transferred
account

and

of

absorbed

on

conscription;

the

seniority of above respondent in


tourist services department held to
be reckoned from the date of his
regular
permanent

appointment
post.

It

against
may

be

mentioned here that respondent


No.1 had option to refuse and in
such

eventuality,

he

would

be

entitled to seniority reckoned in the


parent department.
(underlining is ours)
11.

The next legal proposition which requires

deliberation is the term continuous appointment. The


learned counsel for the appellants and petitioners, to
substantiate their arguments have referred to the
provisions of section 6 of the Act and attempted that
the continuous appointment means the holding of post
by a civil servant whether by initial recruitment,
transfer,

promotion,

acting

charge,

officiating

promotion basis or even by retrospective promotion.


According to their version, under subsection (6) of
section 6 of civil servants Act, it has been clearly laid
down that confirmation of a civil servant in service
or against a post shall take effect from the date of the

20

occurrence of a permanent vacancy in such service or


against

such post

or from the date of continuous

officiation,. According to

their

version, the term

continuous officiation is unanimous to

the term

continuous appointment.
12.

It appears that the argument is based on

bare reading of the statutory provision without diving


deep into it. No provision of statute can be interpreted
in isolation. For interpretation of a statutory provision,
the statute as one organ has to be considered while
keeping in mind
legislature.

This

the whole scheme and wisdom


Court,

while

dealing

with

of
the

interpretation of statute in the case reported as Miss


Rakhshanda Aslam and another vs. Nomination Board
of Azad Jammu and Kashmir through its Secretary,
Muzaffarabad and 2 others, [PLD 1986 SC (AJ&K) 1]
has observed as under:17 it should be remembered that an
enactment

or rule is to be read and

interpreted as a whole. To discover the


intention of the author, such intention is
to be gathered from the Act or Rules as
a whole. It is settled principle of law
that effect is to be given to every part
and every word of the Act or Rules.

21

Therefore, as a general rule the Court


should

avoid

construction

which

renders any provision meaningless or


inoperative and must lean in favour of a
construction which will render every
word operative rather than one which
may make the

same word idle or

nugatory. Therefore, while construing


an enactment or rule it is the duty of
the Court to have regard to the whole
instruments to ascertain the true intent
and meaning of any particular provision.
The particular phrase of an instrument
must be construed with regard to the
remainder of the instruments to know
the intent of the author.

In another case reported as Abdul Karim & 6 others vs.


Tahir-ur-Rehman [1990 PSC (Supreme Court of AJ&K)
735], has enumerated the following principles for
interpretation at page 749 of the judgment which are
as follows: (k) Before I part with the case, I would
like to narrate the general principles of
interpretation stated by the Supreme Court
of Pakistan in a reference by the President
under the defunct constitution of 1956 (P.L.D
1957 S.C. 219). The Supreme Court stated

22

the general principles of interpretation and


said:1.

The first object of the Court is to


discover the intention of the author and
that such in the statute or document.

2.

The second rule is that the intention of


the legislature in enacting a statute
ought

to

be

derived

from

consideration of the whole enactment in


order to arrive at a consistent plan. It is
wrong to start with some a prior idea of
that intention and to try by construction
to Wedge it into the word of the statute.
3.

The third rule is that a statute may not


be extended to meet a case for which
provision has clearly and undoubtedly
not been made.

4.

The fourth rule is that whenever there is


a particular enactment and a general
enactment in the same statute, and the
latter, taken in its most comprehensive
sense, would overrule the former, the
particular enactment must be operative,
and the general enactment must be
taken to affect

only the other part of

the statute to which it may properly


apply.
5.

The

fundamental

principle

of

constitutional construction has always


been to give effect to the intent of the

23

framers of the organic law and the


people adopting it.
6.

Another elementary rule of construction


of

constitutional

instrument

is

that

effect should be given to every part and


every word of the constitution. Hence as
a general rule, the Courts should avoid
a

construction

provision
and

which

meaningless

must

lean

in

renders
or

any

inoperative

favour

of

construction which will render every


word operative rather than one which
may

make

some

words

idle

and

nugatory.
7.

The

next

rule

in

construing

constitutional provision is that it is the


duty of the Courts to have recourse to
the whole instrument, if necessary, to
ascertain the true intent and meaning
of any particular provision.
mode

of

ascertaining

the

The best
meaning

affixed to any word or sentence by a


deliberative body is by comparing it with
the words and sentences with which it
stands connected, and a constitutional
provision or a phrase to a constitutional
provision must

be read in connection

with the context. Nosciture a Sociis is


the rule of construction applied to all
written

instruments.

Therefore,

particular phrases of a constitution must

24

be

construed

with

regard

to

the

remainder of the instrument and to the


express

intent

of

the

constitutional

convention in adopting it.


8.

If there be any apparent repugnancy


between different provisions, the Court
should harmonize them if possible. The
rule of construction of constitutional law
requires

that

two

sections

be

so

construed, if possible, as not to create a


repugnancy, but that both be allowed to
stand and that effect be given to each.
(1) It would appear that one of the cardinal
principles of interpretation

is that: the law

should be interpreted in such manner that it


should rather be saved than destroyed. The
law

including

interpreted
giving

constitution

must

be

in a broad and liberal manner

effect

presumption

the
to

all

its

parts

and

the

should be that no conflict or

repugnancy was intended by the framers. In


interpreting the word of an Act actual words
used in fact throw light about the intention of
the law makers and the other parts of the
statute.
13.

According to the above referred guidelines, it

is well established principle of interpretation that the


provision of statute should not be read in isolation so

25

as to give such meanings which make the other


provisions meaningless and redundant. Our

this view

stands fortified from the case reported as Muhammad


Ayub vs. Abdul Khaliq, [1990 MLD 1293], wherein this
Court while interpreting the statutory provisions

has

observed as under:35 Therefore, in interpreting a statute


one is to see whether a reasonable
meaning can be given after reconciling
the

various

provisions

contained

in

different sections and not to read one


section

independently

of

all

other

sections and give any unreasonable


interpretation.

So

was

held

in

Commissioner of Income-tax v. Messrs


Hoosen Kasam Dada PLD 1960 Dacca
506 wherein it was held that one section
in

statute

should

not

be

read

independently of all others and given


unreasonable interpretation.

14.

When the wisdom

of legislature and whole

scheme of the Act is examined while considering the


statute as one organ, it becomes clear that the
statutory provision of section 6 of the Act has no nexus
with the seniority of Civil servants. These provisions are
related to the legal proposition mentioned in the

26

statutory provision of section 5 of the Act according to


which all the regular appointments whether by initial
recruitment or by promotion or transfer shall be made
on such probation and for such a period of probation as
may be prescribed. While dealing with the question of
probation and confirmation under the pari-materia
provisions of the Civil Servant Act, 1973 (Pakistan), in
the case reported as Muhammad Siddique Ahmad Khan
and others vs. Pakistan Railways through Financial
Advisor and Chief Accounts Officer, Pakistan Railways,
Lahore and others, [1997 SCMR 1514], the apex Court
of Pakistan has drawn the following conclusion which
clarifies the term continuous officiation with relevance
to probation:According to section 6 of the Civil
Servants Act, an initial appointment to a
service or post referred to in section 5,
not being an ad hoc appointment, shall
be on probation as may be prescribed.
This shows that an ad hoc appointment
cannot

be

on

probation

and

an

appointment on probation cannot be ad


hoc. According to Audit Instruction No.
(2) (c) given in para.3 (i), Chapter 11,
section

of

Manual

of

Audit

Instructions, reproduced in combined

27

set of F.R and S.R., Volumes I and II by


Hamid Ali (1991 Edition), the status of a
probationer

is

to

be

considered

as

having the attributes of a substantive


status except where the rules prescribe
otherwise,

perusal of the promotion

order dated 23.5.1969 would show that


appellants

Intizar

Ahmad

and

Muhammad

Mushtaq

Jawaid

were

appointed on probation and not on ad


hoc basis. They were to remain on
probation for a period of six months, at
the end of which they were either to be
continued in their posts or were to be
reverted

to

the

Counters/Clerks,

posts

of

cash

depending

on

their

earning satisfactory reports, vide para,


1 of the order dated 23.5.1969. Fact
that

said appellants were not reverted

and were continued as S.P.Ms beyond


initial period of six months, indicates
that they earned satisfactory reports.
Hence at

the expiry of their period of

probation either the period of probation


was to be extended or they were to be
confirmed. Date of their promotion is,
therefore,

relevant

for

considering

their seniority in the cadre of S.P.Ms.


At the stage of arguments learned
counsel for the appellants produced a
copy of P.R. Gazzette dated 18.1.1975

28

reproducing the Government decision,


which reads as below:(1) Confirmation of Staff.The
Government had decided that all
staff, except work-charged staff or
those working in the temporary
projects, with three years, service
should be confirmed and the posts
against which they are working
should be made permanent as far
as possible. All others who cannot
be so confirmed should be given all
the benefits/privileges of confirmed
staff.
Viewed from any angle appellants
Intizar Ahmad and Muhammad Mushtaq
Jawaid have established their right of
their service as S.P.Ms, being counted
towards their seniority. In all fairness
their seniority in the cadre of S.P.Ms.
should be reckoned

from the date of

their promotion to said post.


There is no force in the contention
of learned counsel for respondent No.1
that regular promotion of Intizar Ahmad
and

Muhammad

Mushtaq

Jawaid

S.P.Ms. depended upon their

as

passing

the departmental examination. There is


no mention in the order of promotion
dated 23.5.1969 that promotion of said
appellants would be subject to passing
of any examination except appearing
before the Selection Board, for which
the said appellants were never asked.

29

It is settled position of law that


seniority in a grade will be accorded to
an officer with effect from the date of
his continuous officitiation in that grade
and

not

from

the

date

of

his

confirmation. Similar view was taken in


the cas of Araab Mukhtar Ahmad v.
Secretary to Government of Pakistan,
Establishment Division Rawalpindi (1983
PLC (C.S) 104). Learned counsel for the
appellants
Association

Engineering
and

others

Officers
v.

State

Maharashtra and others (AIR 1990 SC


1607), where it was observed by the
Supreme Court of India that once an
incumbent is appointed to a post, his
seniority has to be counted from the
date of his appointment and not from
the date of confirmation.
(underlining is ours)

Thus, it is clear that in case of appointment of civil


servant otherwise than made on regular basis, the
question of probation and confirmation does not arise.
Same like the question of confirmation does not arise in
case of a civil servant who has been given retrospective
or anti-dated promotion under the residuary powers of
the Government or

the authority. Therefore,

the

30

arguments that continuous appointment

should be

reckoned from the date of confirmation or continuous


officiation without regular appointment, in the light of
the provisions of section 6 read with section 7 of the
Act, has no substance, hence, is not acceptable.
15.

It will be useful to reproduce here the

provisions of

Rule 8 (2) of Rules 1977 which are as

follows::8. Seniority:- The seniority inter se of


persons appointed
grade

in

to post in the same

Functional

Unit

shall

be

determined:(1)

(a)

In the case of persons appointed

by initial recruitment, in accordance


with the order of merit, assigned by
the Selection authority;
Provided that persons, selected
for appointment to the grade in an
earlier selection shall rank senior to
the

persons

selected

in

later

selection; and
(b)

in the case of persons appointed


otherwise, with reference to the dates
of their continuous appointment in the
grade;
provided that if the date of continuous
appointment in the case of two or
more persons appointed to the grade
is the same, the older if not junior to
the younger in the next below grade,

31

shall

rank senior to

the

younger

person.

(2)

Explanation-I

xxx

xxx

xxx

Explanation-II

xxx

xxx

xxx

Explanation-III

xxx

xxx

xxx.

The

seniority

of

the

persons

appointed by initial recruitment to the


grade

vis--vis

otherwise

those

appointed

shall be determined with

reference to the date of continuous


appointment to the grade;
Provided that if two dates are
the

same,

the

person

appointed

otherwise shall rank senior to the


person

appointed

by

initial

recruitment;
Provided further that inter se
seniority

of

persons

belonging

to

same category will not be altered.


Explanation:
(3)

XXX

XXX

XXX

XXX

(underlining is ours)
In the light of peculiar facts of these cases, the relevant
provision which is attracted is sub rule 2 Rule 8 of the
Rules 1977 which speaks that the seniority of a person
appointed by initial recruitment to a grade vis-a-vis
those appointed otherwise shall be determined with
reference to

the

date of continuous appointment to

32

the

grade.

Here

again,

the

term

continuous

appointment is of vital importance.


16.

As the term continuous appointment has

not been

defined by the statute itself. In the light of

the discussion regarding the scope of section 7 of the


Act, it becomes clear that for the purpose of seniority,
the appointment means regular appointment and in this
rule,

the

word

continuous

attached

to

the

appointment, in our considered opinion is another


condition in addition to regular appointment. For
definition of word continuous in absence of definition
by the statute, we will have to take its ordinary
dictionary meanings. In the Blacks Law Dictionary With
Pronunciation,, Sixth Edition, page 322, the word
continuous has been defined as following:Continuous.
not

Uninterrupted;

intermittent

or

unbroken;

occasional;

so

persistently repeated at short intervals as


to constitute virtually an unbroken series.
Connected, extended, or prolonged without
cessation or interruption or sequence.

Thus, it is clear that according to the rules, the


continuous

appointment

means

unbroken

regular

appointment. Our this view stands fortified from the


case reported as Professor Dr. Raja Muhammad Ayub

33

Khan v. Azad Jammu and Kashmir Government and 4


others, [PLJ 1990 S.C (AJ&K) 29], wherein it has been
observed by this Court that:9.

It is obvious that the expression

continuous appointment is used both


in Civil Service Rules

and in the

Departmental

The

continuous

Rules.
has

not

been

word
defined

either in the Departmental Rules or in


the Civil Service Rules. The dictionary
meanings of the word continuous are
without any break. Thus, we cannot
subscribe to the view that the date of
continuous appointment appearing in
the aforesaid rules
on

which

would be the date

the relevant civil

servant

actually assumes the charge of the post


to which he is promoted or appointed.
The aforesaid expression has been used
in altogether different context. It means
that appointment by promotion

must

have been continuous and shall be


unbroken. For instance if a civil servant
is demoted to his original grade or in
case of appointment by transfer, he
ceases to enjoy the higher grade, his
previous date of promotion shall not be
considered

for

the

purpose

of

seniority.
(underlining is ours)

34

Therefore, for determination of seniority, there are two


conditions, one is regular appointment to the grade or
post and the other is continuous service.
In another case reported as Ghulam Rasool
and others vs. Government of Balochistan and others,
[2002 PLC (C.S.) 47], the apex Court of Pakistan while
dealing with the question of fixation of seniority with
retrospective effect has held that seniority cannot be
conferred with retrospective effect unless such right is
established. It will be useful to reproduce here the
relevant portion of the judgment which speaks as
under:6 In our considered view, conferment
of seniority with retrospective
cannot be

effect

done unless such right is

established. The petitioners have failed


miserably to establish

such a right on

the basis whereof their seniority could


be determined retrospectively. It is well
settled by now that seniority cannot be
determined

without

reference

to

continuous appointment in a particular


grade. Admittedly their services were
discontinued with effect from 30.5.1973
and it is also an admitted feature of the
case that they could not complete their

35

training

and

remained

ousted

from

service till 1978. There is no denying


the fact that they were reinstated by the
Review

Board

vide

order,

dated

20.10.1978 wherein it has been clarified


categorically
would

be

that
given

no

back

and

it

benefits
was

reinstatement simpliciter without any


sort of back benefits. This order, dated
20.10.1978 was neither further assailed
nor any review was made to get the
back benefits inserted which does not
mean financial benefits alone, but also
include

seniority

which

is

benefit. It can thus simply

the

real

be inferred

that the order of Review Board was


accepted as it is and now it is too late to
get it modified by making any deletion,
addition, insertion or amendment as a
specific task was assigned to Review
Board and after its accomplishment it is
no more available

to do the needful.

Admittedly the petitioners had remained


out of service during 1973 to 1978
having no concern whatsoever with the
cadre of Tehsildar and

the said period

was never taken into consideration by


the Review Board and the petitioners
could have been treated
granting extraordinary

on duty by
leave without

pay. It was not an accidental omission

36

but a deliberate and calculated action of


the Review Board which by now has
attained finality and thus the petitioners
cannot

claim

any

benefit

for

the

intervening period.
7..
8.

We have also examined the order,

dated 27.12.1972 passed by Board of


Revenue concerning the appointment of
petitioners

which

is

reproduced

hereinbelow for ready reference:-ORDER BY THE MEMBER BOARD OF


REVENUE BALOCHISTAN
(Administrative Branch)
Dated Quetta, the 27th December, 1972.

No.

10925/66-Admn-1/71

(II).

M/s. Ghulam Rasool son of Mir


Karim

Bakhsh,

resident

of

caste

Dhadar

Raisani,
(Karachi

District) and Muhammad Nasir son


of Nek Muhammad, caste Mengal
resident of Wadh (Kalat District)
are hereby accepted
Tehsildar.

They

necessary training

will

as direct
undergo

as prescribed

in the West Pakistan Tehsildari and


Naib

Tehsildari

Departmental

Examination and Training Rules,


1969

against

two

posts

the newly-created
of

Tehsildars

for

37

Settlement

training during the

current financial year, 1972-1973;


(2)

During the

period, they

training

will be entitled to such pay and


allowances
Rules.

as

admissible

They

are

under

required

to

undergo the training and to pass


the Departmental Examination of
Tehsildars, within the period of
their training as specified in the
above Rules.
(3)

On

successful

training

completion

and

passing

Departmental

of
the

Examination

they

should be declared as qualified to


hold

the

post

of

Tehsildar.

Thereafter on the availability of


vacancy they will be posted as
officiating Tehsildar.
(4)

Before joining

training they are

required to:-(1)

Appear before
Board

the Medical

for

Medical

Examination.
(2)

Produce

Certificates

of

Character from a First Class


Magistrate.
(Sd.) Capt, Saleh Muhammad
Khan, PCS,
Member, Board of Revenue,
Balochistan.

38

9.

A careful perusal of the

said order would reveal as


follows:-(a)

The

petitioners

neither

were

appointed

as

Tehsildar nor posted as


such

but

only

their

candidature as Tehsildar
was accepted.
(b)

They were required


undergo

to

necessary

training as prescribed in
the

West

Pakistan

Tehsildars

and

Naib

Tehsildars Departmental
Examination and Training
Rules,

1969

and

after

only

successful

completion

of

training

and

passing

Departmental
Examination they could
claim

the

post

of

Tehsildar.
(c)

Even
completion
their

after

the

of

training

postings

as

Tehsildar was subject to


availability of posts

39

On the basis of above mentioned


order it can be said safely that the
petitioners were neither appointed
nor posted as Tehsildar, but only
accepted as a candidate for the
post of Tehsildar.
10. We have not been persuaded
to agree with Mr. Basharatullah,
learned Senior Advocate Supreme
Court that no embargo whatsoever
had

bee

conferment

placed
of

retrospective

regarding

seniority

with

effect by Review

Board for the simple reason that


order, dated 2.10.1978 is free from
any ambiguity and it is implicit that
the petitioners were reinstated

in

service with immediate effect with


specific

direction

that

their

reinstatement shall not entitle the


petitioners
compensation

to

any
or

damages,
arrears

of

emoluments or other benefits for


the period they remained out of
service. Had they been reinstated
with retrospective effect it could
have been mentioned in the said
order and accordingly no seniority
could

have

been

conferred

retrospectively in view of the order

40

passed by Board of Revenue and


as discussed hereinabove.
(underlining is ours)
In the light of survey of statutory provisions
and the intention of legislature as depicted from the
statute, it can be safely held that the term continuous
appointment refers to the appointment of a civil
servant made on regular basis and continued without
any break.
In the case reported as Professor Dr. Raja
Muhammad Ayub Khan v. Azad Jammu and Kashmir
Government and 4 others, [PLJ 1990 SC (AJ&K) 29], it
has been observed by this Court that:8.

It is evident that in view of the

above provisions, any law inconsistent


with the provisions of Civil Servants Act
would be inoperative. Thus even if it is
assumed for the sake of argument that
a

retrospective

permissible

promotion,

under

the

is

not

Departmental

Rules that would be deemed to have


been

repealed

by

the

operation

of

provisions contained in Section 22 of the


Act and the rules framed thereunder.
The contention of the learned counsel
for the appellant that expression.. to
the date of continuous appointment

41

appearing

in

rule

10

of

the

Departmental Rules would mean the


date on which a promotee actually
starts functioning against the relevant
post or assume the charge of the post
as

result

supported

of

by

promotion
any

is

not

authority.

An

identical expression also occurs in rule


8(2) of the Civil Service Rules, which is
reproduced as under:
8.

The

Seniority

inter

se

of

persons appointed to post in the


same grade in Functional Unit shall
be determined:-(1) xxx

xxx

xxx

(a)

xxx

xxx

xxx

(b)

xxx

xxx

xxx

(2)

The seniority of the persons

appointed by initial recruitment to


the grade vis--vis those appointed
otherwise shall be determined with
reference

to

continuous

the

date

appointment

to

of
the

grade;
Provided that if two dates are
the same, the persons appointed
otherwise shall rank senior to the
person

appointed

recruitment;

by

initial

42

Provided further that inter se


seniority of persons belonging to
same category will not be altered.

After taking into consideration the detailed deliberation


of hereinabove referred statutory provisions and case
law, in our considered opinion, for determination of
seniority,

the

appointment

to

basic
the

requirements
post,

grade

are
or

regular

cadre

and

continuation of it.
17.

Now we advert to the most complex legal

proposition raised in these cases i.e. the effect of


retrospective, proforma and notional promotion of the
civil servants. As it has been concluded that

for

determination of seniority, the foremost condition is


regular appointment which means the appointment
made in the prescribed mode. The Civil Servant Act
speaks that the word prescribed means the prescribed
by rules. As the proforma, anti-dated or notional
promotions are not prescribed by the rules, therefore,
such

appointments

appointments.

cannot

be

termed

as

regular

It is almost now settled that the

proforma or anti-dated promotion orders are made by


the Government while exercising the inherent powers

43

derived under the provisions of section 22 of the Act.


The statutory provisions

of section 22 of the Act

speaks as under:22.

Saving:- Nothing in this Act

or in any rules shall


limit

or

abridge

the

be construed to
power

of

the

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.

Under this statutory provisions, the Government is not


vested with unlimited or unguided powers rather the
powers vested are qualified with just and equitable
purposes. Therefore, it is clear that the anti-dated or
proforma promotion while exercising the powers under
section 22 of the Act, can only be made if necessary for
just and equitable purposes. These powers cannot be
exercised under discretion in an arbitrary manner. This
Court has also dealt with this point in detail in the case
titled Sh. Manzoor Ahmed vs Azad Govt. & another

44

[1994 SCR 297]. Relevant portion of the judgment is


reproduced as under:
Now,

the

next

point

which

needs

resolution is as to what is the scope of


powers

of

the

Government

under

section 22 of the Azad Jammu and


Kashmir Civil Servants Act, 1976 and
the rules framed thereunder. To be
more specific whether the Government
could pass an order under the said
provisions

giving

effect,

even

affects

the

if

it
the

retrospective

same

seniority

of

adversely
other

servants. It may be stated

civil

that this

aspect of the matter has been

subject

of judicial consideration by the superior


Courts of Pakistan in a number of cases.
Identical provisions to those

contained

in section 22 of the Azad Jammu and


Kashmir, Civil Servants Act, 1976 also
exist in the corresponding service laws
which are in force in the province of the
Punjab. Thus, it would be expedient to
consider some of the authorities which
have been relied upon by the learned
counsel for the appellant during

the

course of arguments. A reference may


be

made

Muhammad

to

Iqbal

case

reported

Khokhar

v.

as
The

Government of the Punjab (PLD 1991

45

S.C. 35), while dealing with the scope of


identical provisions contained in Punjab
Civil Servants Act, 1974 and the rules
framed thereunder, it was observed that
although

the Government had wide

powers to make an order regarding the


terms and conditions of civil servants,
irrespective of the provisions of the Act
and rules, but these powers are subject
to one important condition, namely, that
the order must

be just and equitable

and not arbitrary. The question as to


whether

an order which adversely

affects the seniority

of another civil

servant, would be equitable and just


within the relevant provisions of law.
While dealing with the question, Mr.
Justice
following

Shafi-ur-Rehman
observations

made
in

the
Iqbal

Khokhars case, referred to above:13.

The

remains

to

only
be

question

that

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

46

Rules and 15 (1) (a) of the Service


Rules,

1967

in

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

21.10.1969

to

for

the

period

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

Executive
themselves

to

Engineer

the

post

of

do

not

by

prejudicially

affect

anyone, and are, therefore, not in

47

violation

of

the

law

but

in

relaxation of it. Therefore, they are


declared to that extent to be valid
and proper.
Another learned member of the bench,
Mr. Justice Rustam S. Sidhwa, while
dealing with the proposition, made the
following observation at page 52:.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

Federation

of
of

the

law.

See

Pakistan

vs.

Muhammad

Saifullah

1959

166,

SC

Khan

PLD

where

the

President of Pakistans exercise of


discretionary powers under Article
58 (2) (b) 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

48

strikes

down

retrospective

regularization,
contravenes
and

1974

but

directly

Rule 8 of the 1967


Rules

and

adversely

affects the seniority and right of


promotion of the 1974 batch
direct

inductees

and

of

would,

therefore, with profound respect to


the learned Governor, declare that
the same deserves to be set aside.
In case reported as Mian Shafiuddin,
Deputy Director v. Surat Khan Marri,
Director

Regional

Information

Office,

Islamabad (1991 SCMR 2216), it was


observed that regularization of seniority
cannot be ordered if it affects the
seniority of other civil servants.
In case reported as Ghulam Sarwar
v. Province of Punjab (1982 SCMR 46),
it was

observed

that

an

ad

hoc

appointee does not get the status of a


regular appointment merely by afflux of
time.
In

Mian

Muhammad

Afzal

v.

Government of the Punjab (1982 SCMR


408),

dealing

with

the

question

of

seniority in case of an ad hoc appointee,


it was observed as under:

We

propose

taking

up

the

question of the nature and effect of


ad hoc appointment first because it

49

is

common

to

the

first

three

appellants and to some of the


respondents.
as

Their

Assistant

expressed

appointments

Engineers

to

be

were

ad

hoc,

temporary, not conferring any right


seniority etc. The word ad hoc has
the dictionary meaning of for a
particular object. The object as
appearing

from the appointment

of the appellants as well as that of


some of the respondents was that
their

appointments were made

and were to last only as long as


regular

appointments

accordance

with

the

in

prescribed

Rules were not made. The moment


the

regular

appointments

accordance

with

prescribed

were

the

in

procedure

made,

such

appointments were to terminate.


Ad

hoc

appointments

truly

so

called being not in accordance with


the Rules applicable to the service
cannot receive either recognition or
protection by reference to any of
the Rules because they do not
imply appointments to the service
as such. Such appointments being
outside the purview of the rules
cannot for any purpose be treated

50

as conferring a benefit under the


Rules.

It

appellants
respondents

follows
and

that

some

were

truly

appointees for a certain

if

the

of

the

ad

hoc

period

they cannot on the basis of Rules


claim their seniority from that date
whether it was continuous or not.
In

Saif-ud-Din

v.

Secretary

to

Government of the Punjab (1982 PSC


920), it was observed that an ad hoc
appointment does not confer any right
to the seniority from the date of such
appointment.
In case reported as Saifuddin v.
Secretary to Government of the Punjab
(1982 SCMR 877), it was again held
that an employee shall not be entitled to
claim seniority from the date of his ad
hoc appointment; his seniority is to be
reckoned from the date of his regular
appointment.
Identical view was expressed in two
unreported cases of this Court entitled
Muhammad Fazal Khan v. Muhammad
Muskeen (Civil appeal No.6 of 1994
decided

on

8.5.1994)

and

Ghulam

Mustafa Qureshi v. Azad Government


(Civil Appeal No. 35 of 1993 decided on
5.11.1993.

51

As stated earlier, even the Service


Tribunal has expressed the view that
seniority of
normally

civil

servant

reckoned from

will

be

the date of

regular service, as is evident from the


extract

from

the

Service

Tribunal

judgment

of

the

reproduced

in

the

earlier part of the judgment. However, it


appears

that

entertained

the

the

Service

brief

Tribunal

that

powers

available to the Government

under

section 22 of the Civil Servants Act are


exercisable even when the seniority of
other civil servant is adversely affected.
But the law laid down by the superior
Courts of Pakistan, as indicated above,
is that the residuary powers under
section 22 of the Civil Servants Act
cannot be said to have been exercised
justly and equitable if the same have
been exercised
detrimental

in a way which is

to the interests of another

civil servant, as has been clearly held in


Iqbal
above.

Khokhars

case,

referred

to

The residuary powers available

under section 22 of the Civil Servants


Act are to be sparingly exercised to
advance the cause of justice and equity
and not give an undue advantage to a
civil servant in contravention of relevant
law on the subject.

52

In the light of what has been stated


above, I accept the appeal in terms that
notification

No.

Admin./Rules/

705/89 dated 18.4.1989

685-

is ineffective

and inoperative so far as it adversely


affects the seniority of the appellant in
relation

to

respondent

No.2.

The

seniority list dated 6.6.1991 shall be


amended and the appellant shall be
shown senior to respondent No.2.
Thus, it is clear that under the statutory provisions, the
terms just and equitable

are of vital importance

which clearly connotes that

while granting the anti-

dated or proforma promotion, neither any injustice be


caused to civil servant nor it should be inequitable.
18.

Another aspect of this legal proposition is

that vested rights are created in favour of a civil


servant on regular appointment to a post or grade and
at the time of his regular appointment, if any other
person holder of the same post or grade is not regularly
appointed then by granting subsequently, notional
promotion or regularization of his service may result
into depriving the former of the vested legal rights.
Surely, this will be not just and equitable exercise of
powers. However, there may be some eventualities

53

where a civil servant has been deprived of his vested


legal right of promotion without any fault on his part.
For exercising the residuary powers under section 22 of
the Act, the Government must have to determine the
just and equitable purposes and where it appears that
due

to

proforma

or

retrospective

promotion

or

regularization of service any other civil servants rights


are being adversely effected, he must have been
provided an opportunity of hearing and the order
should be passed after comparative examination of the
rights of both the contestant civil servants. The apex
Court

of

Pakistan,

while

dilating

upon

the legal

proposition of anti-dated promotion and seniority in the


case reported as

Nazeer Ahmed and others vs.

Government of Sindh through the Chief Secretary,


Sindh Secretariat, Karachi and others, [PLJ 2001 SC
228],

has categorically observed

that the right of

seniority is not available with retrospective effect as it


amounts to deprive a civil servant of his accrued rights.
Para 7 of the judgment is relevant which reads as
under:7.

In so far as the question of

conferring seniority with retrospective


effect is concerned that cannot be done

54

unless such right was established. It is


true that Government has the power to
make retrospective promotion but there
must exist some criteria for assignment
of such right with retrospective effect.
Seniority may be so assigned that the
seniority of

senior is not adversely

affected. The dates of promotion cannot


be

later

promotion

than

the

dates

because

of

actual

valuable

rights

accrue on promotion and the official


concerned cannot be denied the benefits
which have accrued to them
It is well established by now that
regularization of seniority from the
retrospective date is not permitted and
is beyond the power of Government. In
this regard reference can be made to
PLD 1991 SC 82 + 1985 SCMR 1201.
19.

This Court while attending the question of

promotion of direct appointees and promotees as well


as the anti-dated promotion in the case titled Abdul
Majeed Banday vs. Azad Government & others, [civil
appeal

No.

66/2004,

decided

on

12.7.2005]

observed as under:13. The other contention of the learned


Advocate

for

the

respondents

that

under the rule of law laid down in the

has

55

case of Ejaz Ahmed Awan and 5 others


vs. Syed Manzoor Ali Shah and another
[1999 SCR 204], that the seniority
would start from the date of passing of
B.Ed.

has

not

been

matter,

controversy or dispute between

the

contesting parties in this case, hence, it


has no bearing in the present case. This
rule may apply to the promotees i.e the
respondents inter-se and it is rightly so
laid down. The case in hand is different.
The dispute in this case is of seniority
between the direct recruits and the
promotees. The seniority in this case
would, therefore, begin from the date of
their regular appointments as discussed
above.
14.

As

promotion

is

for

the

concerned,

anti-dated
it

is

not

approved by any law or rule, however,


the Government is empowered under its
general powers vested under section 22
of the Civil Servants Act to deal with the
case of any civil servant in such manner
as may appear to it to be just and
equitable.

As

the

allowed selection

respondents

were

grades B-17, they

were given the anti-dated promotion


from the dates of their placement in B17 for the purpose of monitory benefits
and perks. It does not partake with the

56

anti-dated seniority. The seniority

is

reckoned from different set of principles,


while

anti-dated

promotion

is

not

governed by any rule of law, except the


general power of Government to
the hardship in

given

notifications whereby
allowed

the

therefore,
the right
they

cases.

meet
The

respondents are

anti-dated

promotion,

do not bestow upon them


of seniority

are

given

from the dates


the

anti-dated

promotion. In the case reported as


Nazar

Ahmed

Khan

v.

Syed

Sabir

Hussain Naqvi and 3 others, [2000 SCR


580], this Court has held that it is within
the

discretion

authority

to

of

the

award

competent
proforma-

promotion to any civil servant provided,


it is just and equitable

and does not

adversely affect the rights of any civil


servant. The above case is also reported
as Nazar Ahmed Khan, Circle Registrar
Co-operative Department of Azad Govt.
of the State of Jammu and Kashmir
Muzaffarabad and others v. Syed Sabir
Hussain

Naqvi, Circle Registrar, Co-

operative Department of Azad Govt. of


the

State

of

Jammu

and

Kashmir,

presently acting as Deputy Registrar,


Co-operatives, Muzaffarabad & 3 others
in [2001 PSC 187]. In the case of

57

Government of N.W.F.P. through Chief


Secretary and another v. Muhammad
Ajmal and 2 others [1986 SCMR 2007],
the anti-dated promotion ordered by the
Government was set-aside

by the

Service Tribunal, and the order passed


was upheld

by the Supreme Court

holding that no rule or regulation was


produced by the Government

either

before the Tribunal or before this Court


authorizing it to order promotion with
retrospective effect. In the case titled
Sh.

Manzoor

Ahmed

v.

Azad

Government & another [1994 SCR 297],


where the question of seniority was
involved, it was held that: The residuary powers under
section 22 of the Civil Servants Act
cannot

be said to have been

exercised justly and equitably if


the same have been exercised in a
way which is detrimental to the
interests of another civil servant--The residuary powers under section
22 of the Civil Servants Act are to
be sparingly exercised to advance
the course of justice and equality
and

not

to

give

an

undue

advantage to a civil servant in


contravention of relevant law on
the subject.

58

It is further held

in the above case

that:Even if a person duly qualified the


Public Service Commission, but is
given anti-dated seniority over the
other civil servants, it will be ultravires of this section.
This view was reiterated and reaffirmed
in

another

case

titled

Muhammad

Arshad Khan Tehsildar District Bagh and


others v. Azad Government of the State
of

J&K

through

its

Chief

Secretary

Muzaffarabad and others [PLJ 2000 SC


(AJK) 88].
15.

The learned Advocates for the

respondents had relied upon the case


reported as Muhammad Ilyas Khan and
5 others v. Sardar Muhammad Hafeez
Khan and 4 others [2001 SCR 179] in
support of their contention that antidated

promotion

accepted

in

the

case

was

for the purpose of seniority.

We have gone through the report of the


case and are sorry to agree with the
learned Advocates. In this case the
retrospective promotion of respondents
from 1987 was not challenged in view of
which it was observed

by this Court

that Seniority of a civil servant would


be reckoned

from the date of his

regular promotion, irrespective of facts

59

as to whether

the retrospective effect

to his promotion from 1987 was legal or


not because it was not challenged. It
was further observed that even a void
order adversely affecting the interest of
a person should be challenged within a
reasonable

time.

The

anti-dated

promotion/seniority in the referred case


was not accepted as a rule, but failure
of affectee in not challenging the order
hit his indolence.
In view of above, accepting the
appeal,

the

judgment

of

Service

Tribunal is vacated to the extent of the


direction that the Department must
settle issue of seniority amongst the
appellant

and

respondents.

The

appellant having been selected earlier in


grade B-17 to the regular cadre of
Subject Specialist ranks senior to the
respondents, who were selected later,
irrespective

of

their

anti-dated

promotion, which is for the purpose of


pay etc, not for seniority.
In this judgment, the previous judgments on
the subject i.e Nazar Ahmed Khan vs. Syed Sabir
Hussain Naqvi and 3 others, [2000 SCR 580], Nazar
Ahmed

Khan,

Circle

Registrar

Co-operative

Department of Azad Govt. of the State of Jammu and

60

Kashmir

Muzaffarabad

Hussain

Naqvi,

and

Circle

others

v.

Registrar,

Syed

Sabir

Co-operative

Department of Azad Govt. of the State of Jammu and


Kashmir, presently acting as Deputy Registrar, Cooperatives, Muzaffarabad & 3 others [2001 PSC 187],
Government of N.W.F.P through Chief Secretary and
another vs. Muhammad Ajmal and 2 others, [1986
SCMR 2007], Sh. Manzoor Ahmed vs. Azad Govt. &
another, [1994 SCR 297], Muhammad Arshad Khan
Tehsildar District Bagh & others vs. Azad Govt. of the
State of J&K through its Chief Secretary & others, [PLJ
2000 SC (AJ&K) 88], Muhammad Ilyas Khan & 5 others
v. Sardar Muhammad Hafeez Khan and 4 others, [2001
SCR 179], have been discussed and relied upon,
therefore, these reports need not to be separately
discussed.
20.

The

apex

Court

of

Pakistan

also

while

attending the question of seniority with reference to


anti-dated appointment has held that seniority of civil
servant will be determined from the date of actual
appointment. This principle of law has been enunciated
in the case reported as Muhammad Hayat & others v
Jan Muhammad, [1988 SCMR 971]. The apex Court of

61

Pakistan in a recent judgment reported as SQN. LDR.


Farooq Janjua vs. Secretary M/O Defence and others,
[2004 PLC (C.S.) 612] while dealing with the question
of anti-dated promotion has observed as follows:10. We having heard the appellant in
person

at

length

have

thoroughly

considered the point raised

by him in

support of the appeal. We find that


appellant voluntarily accepted the offer
of

appointment

on

contract

and

subsequently on representation he was


absorbed

on

therefore,

permanent

basis,

the period of his contract

despite having been treated as part of


his regular service, he would not be
entitled to be given seniority
employees who

over the

were appointed on

permanent basis during the period when


he

was

on

appointment

contract.

The

regular

from retrospective

date

with the grant of pay and allowances to


the

appellant

would not

make him

senior to his colleagues who joined


service on permanent basis before he
joined. We have not been able to

find

out any illegality in the judgment of the


Tribunal and further no question of
public importance is involved in the
present case for interference of this
Court.

62

21.

In

the

light

of

hereinabove

discussed

statutory provisions and legal precedents, it becomes


clear that the anti-dated/proforma appointments are
not regular appointments rather these fall within the
domain

of

residuary

powers

of

the

Government,

derived under section 22 of the Civil Servants Act for


just and equitable purpose. According to law of the
land,

such

appointments

normally

are

made

for

redressal of any injustice caused to a civil servant to


the extent of his monitory benefits etc. but seniority
cannot

be

determined

from

the

dates

of

such

retrospective appointments rather the seniority has to


be determined from the date of regular appointment.
22.

As we have already observed that there may

be some exceptional cases or eventualities in which for


redressal of grievance of an individual civil servant and
protection of his accrued rights, the issue of seniority
should also be considered.

In such like cases, in

absence of any prescribed mode, we can only suggest


that if in the light of the established facts, vacancy of
the respective quota of the concerned civil servant was
available;

he was fulfilling all the legal requirements

for promotion or holding the post but has been

63

deprived of without any fault on his part due to any


mismanagement of the concerned official or by any
other reason and his junior has got preference over
him; to meet such eventualities, either there should be
prescribed statutory mode or there must be some
statutory guidelines. However, till that according to
peculiar facts of each case, if for determination of
seniority, exercise of powers by the Government under
section 22 of the Act is also necessary for just and
equitable purpose, in such case, the Government
should with

reasoning

determine

this issue after

hearing the other concerned civil servants whose rights


of seniority are apprehended to be adversely effected.
If for just and equitable purpose, effect of seniority is
also demanded, it should be given through an express
order and not impliedly or by implication.
23.

Now we advert to the titled cases separately.

First of all we observe here that in appeal N0. 44/2010,


in the light of hereinabove discussed detailed reasons,
the judgment of Service Tribunal is quite consistent
with the principle of justice, hence, the appeal has no
substance, thus, the same stands dismissed.

64

24.
No.

As for the matter raised in review petition


4/2009

is

concerned,

we

have

hereinabove

observed that confirmation of proforma or anti-dated


promotion falls within the domain of Government under
the residuary provisions of section 22 of the Act. In the
impugned judgment, it appears that the appointment
order of respondent to the extent of retrospective
promotion has also been recalled. The argument of
learned counsel for the petitioner to this extent appears
to have substance. The Government may confer the
anti-dated or proforma-promotion to a civil servant for
the monitory purpose, therefore, to this extent, review
petition is accepted with the observation that the
promotion order of the petitioner to the extent of
retrospective effect is restored with the condition that it
will be only to the extent of monitory benefits but for
the purpose of seniority the date shall be the date of
regular appointment, therefore, with this modification,
review petition stands disposed off.

Muzaffarabad.
.4.2013

JUDGE

CHIEF JUSTICE

JUDGE