NAZIR AHMAD Versus PAKISTAN

1. SAJJAD AHMAD, J .‑The appellant herein Mr. Nazir Ahmad, who is serving in the Posts and Telegraphs Department, Pakistan (hereinafter described as `the department'), moved a writ petition in the High Court of West Pakistan (Lahore), under Article 2(4) of the Laws Continuance in Force (President's Post Declaration Order No. 1 of 1958), for quashment of the orders of the respondent‑Government, dated the 12th of October 1954, (Annexure 'S'), whereby his seniority in the Cadre of Engineering Supervisor was lowered vis‑a‑vis respondents Nos. 2 to 12, who were before then treated as juniors to him. A writ of mandamus was also prayed for, to restore his original seniority with all the consequent benefits. A Division Bench of the High Court has dismissed the petition by its judgment, dated the 20th of October 1966, against which this appeal is directed by special leave.

2. The controversy has arisen in the following circumstances:

3. The appellant competed in the clerical services competitive examination held by the department in November 1942, and was placed on the waiting list for appointment as a first division clerk. An offer for appointment was made to him on the 22nd September 1943. As the appellant intended to compete for the Engineering Supervisors examination of the same department, which was to be held a few days hence, between the 18th to 20th of October 1943, he requested the Postmaster General, by an application dated the 5th of October 1943 (Exh. `E'), for permission to join his office after the aforesaid competitive examination was over, provided that the delay in joining did not affect his seniority. It was added in the application that in case this request is not acceded to, he should be informed by return of post, so that he should join immediately. A reply was received, permitting him to report for training after the 21st of October 1943, on the conclusion of the Engineering Supervisors' examination.

4. The appellant succeeded in this examination also and was selected for training as an Engineering Supervisor on the 9th of February 1944. However, he failed to pass the medical test in the first instance, which was conducted by a Medical Board on the 21st of February 1944. But in an appeal against the decision of the Medical Board, he was declared fit on the 1st of July 1944. The department then released him for his training which was to last for fifteen months, but due to the outbreak of the Great World War, the period was curtailed to six months for partial training, three months at Jabbalpore and three months in the field. After doing this training, the appellant was appointed an Engineering Supervisor on the 15th of May 1945. Subsequently, in March 1951, he was sent to Lyallpur to do the balance of his interrupted training which he completed along with respondents 7 to 12, and resumed his job as an Engineering Supervisor on the 30th of October 1951. Respondents Nos. 2 to 12, who had also been selected for training as a result of the 1943 examination simultaneously with the appellant having cleared their medical examination earlier, and having in consequence done their partial training of six months before the appellant did his, were appointed as Engineering Supervisors in September 1944, quite a few months prior to the appointment of the appellant to the same position.

5. The department had framed rules for the recruitment and training of Engineering Supervisors, Carrier Attendants and Wireless Operators as per Air Resolution No. S‑116‑1/42 dated the 8th of June 1943. According to these rules, there were two categories of candidates for admission to the Engineering Supervisors' examination, namely, (1) departmental candidates which term was defined to mean a Telegraphist of the Indian Posts and Telegraphs Department, a Telephone Inspector including one who was employed as a Carrier, a Repeater Attendant, a Telephone Operator or a Mistri who had passed the Matriculation examination, and (2) outside candidates which meant candidates other than the departmental candidates. Members of the staff of the department other than those mentioned at No. (1) also fell in the category of "outside candidates." Under rule 9, outside candidates were to apply to the Director‑General of the department for admission to the examination in the prescribed form, but in the case of such candidates who were in permanent Government employment, an application had to be forwarded through proper channel to the head of the circle of the department in whose circle their office was situated. For outside candidates employed in the department itself, rule 14. (ii) provided that they shall be selected by the head of the circle after scrutiny of their confidential record. He had the discretion to reject the appli cation of any candidate whose record was unsatisfactory. Rule 22 laid down that all selected candidates were to do their training of different sorts, as prescribed therein, for a period of fifteen months. Rule 28 which governed the relative seniority of the appointees to the service runs as follows:‑

6. "Rule 28 Seniority. ‑For the purpose of determining the relative seniority in the cadre of Engineering Supervisors of those appointed at any one time, there will be two groups viz., departmental candidates and other members of the staff of the department who were selected as outside candidates and (2) other outside candidates. Seniority in each group will be determined according to the total marks obtained by each at the final examination held on completion of training at the Departmental Training Class. But all the candidates selected from Group 1 will be given seniority over those in Group 2 irrespective of the number of marks obtained in the examination. All the Engineering Supervisor appointed after one examination will rank senior to those appointed after the later examination."

7. It is clear that for examination of the Engineering Supervisors, the rules contemplate two groups of three categories, the first consisting of departmental candidates and the second of other members of the staff of the department described as "outside candidates" and "other outside candidates." However, for determining the seniority of the candidates inter se who are appointed at any one time after the examination, categories 1 and 2 are grouped together, and this group is given seniority over the second category of the second group consisting of persons appointed as "other outside candidates". It is not denied that in the matter of his seniority, the department had treated the appellant, from the beginning of his appointment in this cadre as an "outside departmental candidate", and he has been earning his promotions on the same basis. He was promoted as an Assistant Engineer on the 15th October 1949, in preference to respondents 2 to 12. According to the extract from the list of officers corrected up to 31st of December 1952, issued by the department (Annexure `N'), the appellant is shown at serial No. 14 in the order of seniority, above respondents Nos. 2 to 12, and this continued to be the accepted position until it was changed by the impugned order on the 12th of December 1954. In the list which was issued by the department subsequently, as corrected up to the 1st April 1957, the appellant's position in the cadre was lowered to No. 33, and each one of the respondents Nos. 2 to 12 was placed as senior to him. The change was brought about on the representation of respondent No. 11 (Sh. Manzur Hussain), based on the ground that the appellant's initial seniority at the time of his appointment to the cadre of Engineering Supervisors and his treatment and promotions since then have proceeded on the erroneous assumption that he was an "outside departmental candidate" at the time of his admission to the examination of the Engineering Supervisors held in November 1942. This ground was upheld in the impugned order which inter alia states: '

8. "The case has been carefully examined. The Service Book of Mr. Nazir Ahmad shows that he entered the department on the 23rd October 1943, as a First Division Clerk in the office of the Postmaster General, Punjab and N.W.F. P. Circle, Lahore, The examination for recruitment of Engineering Supervisors in which Mr. Nazir Ahmad appeared was held on the 18th, 19th and 20th of October 1943.

9. Consequently, he could appear in the said examination as an outside candidate only. According to rule 28 of the Engineering Supervisors' Recruitment Rules, as embodied in the Department of Posts and Air Resolution No. S‑116‑1/42 dated the 8th June 1943, only those members of the staff who were already working in the department and who appeared in the examination as outside candidates are entitled to get seniority along with the departmental candidates. Mr. Nazir Ahmad Being not in the department in any capacity on the dates of the examination, he cannot be included among others members of the staff of the department and grouped along with departmental candidates for the purpose of seniority in the cadre of the Engineering Supervisors.

10. Keeping these points in view, it has been decided by Government that Mr. Nazir Ahmad should be treated as an outside candidate and his seniority fixed accordingly."

11. In challenge of this order, the complaint of the appellant before the High Court was two‑fold, the first that he was a "departmental outside candidate" even when he sat for the competitive examination of the Engineering Supervisors having been employed by the department before the date of that examination, although he had joined the service later on the 23rd October 1943, with the permission of the department and without prejudice to his rights of seniority. The second contention was that selection and appointment in rule 28 ibid do not relate to the time of taking the relevant examination but refer to a point of time when selection and appointment of the successful candidates take place to receive the requisite training, as prescribed for the Engineering Supervisors under the rules. The learned Judges of the Division Bench have held that the date of reckoning the appellant's status as an "outside departmental candidate" or otherwise was the 23rd of July 1943, when he had applied for admission to the examination of the Engineering Supervisor, and on that date since he was not in the service of the department, he could not be considered as a "departmental outside candidate". Reliance was placed on rule 14(ii), already cited above, for the conclusion that as the appellant's application to sit in the examination was not routed through the head of a circle, who could have rejected it in his discretion after examining the confidential record, he could not be deemed to have taken the examination as a "departmental outside candidate".

12. With all respect, the learned Judges of the Division Bench, in my view, have made an erroneous approach to the case. No question of the appellant's selection or appointment to the cadre of the Engineering Supervisor arose at the time of his taking the competitive examination, which, in fact, depended on the result of the very same examination. If he had failed or had not attained a favourable position in that examination, he could not have been considered for selection or appointment to the cadre of the Engineering Supervisors.

13. Again, in my view, selection of the candidates from one group or the other and their appointment at any one time and their relative seniority depending on the total marks obtained by each at the final examination held on completion of their training at the departmental training class, of "departmental candidates" and "departmental outside candidates" in any event taking precedence over "outside candidates simpliciter", as cited in rule 28, lead to the conclusion that the status of the candidates in regard to their categorisation is to be determined after the declaration of the result of the competitive examination when they are to be selected and appointed as Engineering Supervisors to do the requisite training. It is obvious that on the date of his selection and appointment to do that training; viz.' the 901 of February 1944, the appellant was a "departmental outside candidate", having joined the department as a First Division A Clerk much earlier on the 23rd of October 1943. Mr. Muhammad Ismail Bhatti, the learned counsel for the department, has contended that the term "appointed at one time" should be construed to mean the actual appointment as Engineering Supervisor after the training period which, in the case of the respondents, was earlier than that of the appellant, and, therefore, the former must be placed senior to him even if he were to be deemed a "departmental outside candidate". This argument is not sustainable, as seniority under the rule is determined on the total number of marks obtained by each after the completion of the training period, and the appointment and selection for the purposes of training must, therefore, precede and not follow that training period. The entire batch of the trainees selected after one competitive examination; in my view, will be deemed to have been appointed at one time to take their training regardless of the fact whether they take it together or separately in different groups, and are posted to their jobs on different dates. Their seniority inter se will depend on the number of marks obtained by each in the final examination held on the completion of their training. The fact that the appellant and respondents Nos. 2 and 12 were selected and appointed at one time as Engineering Supervisors is affirmed by the general Circular No. 35 issued by the Director‑General, Telegraphs, on the 9th of February 1944, (Annexure `L'). While notifying the result of the successful candidates, it described respondents Nos. 3 and 7 as "depart mental candidates" and the rest of the respondents and the appellant as "direct recruits", and states further that "they have been selected to undergo training for appointment as Engineering Supervisors as a result of the examination held in 1943".

14. In my opinion, rule 28 itself makes it clear that the selection of a batch of selectees after one examination would mean their appointment at the same time by stating, that "Engineering supervisors appointed after one examination will rank senior to those appointed after a later examination".

15. It was no fault of the appellant that his training was delayed on account of his initial rejection in the medical test, and as a result, the respondents got their training and were appointed before him. It has been brought to our notice that the Establishment Division of the Cabinet Secretariat, by its O. M. No. 6/10/55 dated the 25th March 1955, has ruled that "a qualified candidate, who is prevented from joining his post for reasons beyond his control, should count his; seniority from the date of his nomination and not from the date of his joining".

16. Mr. Mahmood Ali Qasuri, the learned counsel for the appellant, has contended that the construction of the words "appointed at one time" as meaning "selected at one time for training" has been consistently interpreted by the department itself in that sense, and that if a different view is now taken, the seniority of a large number of Engineering Supervisors will be upset. He has cited instances to support his submission which illustrate that the department has maintained seniority of the candidates in the cadre from the date of their selection for training after passing the competitive examination of the Engineering Supervisors in a particular year irrespective of the dates of their subsequent postings to their jobs. To check this point, we had sent for the Director‑General of the department who was unable to controvert this position. The departmental practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course by this practice. In the case of the appellant, the seniority initially accorded to him has held the ground continuously for ten long years until it was disturbed by the impugned order. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department. A passage from Crawford's Statutory Construction (1940 edition at page 399) may be usefully reproduced to point out the effect of "departmental construction", that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules. The learned author observes: "Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities".

17. In the light of what I have stated above, I would accept this appeal, set aside the judgment of the High Court as well as the impugned order, and direct that the appellant's seniority in the cadre of Engineering Supervisors be restored back to the original position, as it obtained before the impugned order was passed, and that he should be allowed all the benefits consequent thereon. There shall be no order as to costs.

18. HAMOODUR RAHMAN, C. J .‑I agree.

19. MUHAMMAD YAQUB ALI, J. ‑I agree.

20. K.B.A. Appeal accepted.