KABIR AHMAD Versus GOVERNMENT OF THE PUNJAB

ORDER

M. S. H. QURESHI, J. ‑The petitioners in these two petitions, namely, Nos. 479 and 589 of 1981, seek leave to appeal from the judgment of the Punjab Service Tribunal dated 5‑2‑1981, whereby their appeal against the seniority list of 11‑7‑1978 was dismissed.

2. The petitioners are members of P. C. S. Executive Branch, of the West Pakistan Civil Service (Executive Branch) Rules, 1964, which were in force at the relevant time, recruitment to the. Service could be made only by‑

(a) Initial recruitment on the recommendations of the Public Service Commission based on the result of a competitive Examination con ducted by it, and

(b) promotion.

However, towards the end of 1972, the Provincial Government felt the need for recruiting some 100 officers, for which purpose a new Rule 5‑A was added after Rule 5. This Rule, as its preamble shows, was in the nature of "Special provisions for recruitment during the calendar year 1973" and provided for appointment to the Service to be made during that calendar year. According to this Rule, the inter se seniority of the selected candidates was to be in accordance with the respective order of merit assigned to them by the Commission but as against other members of the Service they were to rank junior to the candidates selected through written examination in the said calendar year. This would mean that they were to rank junior also to those appointed by promotion under rule 5 as the promotees were by virtue of rule 9 (3) of the 1964 Rules to rank senior to the direct recruits of the same year. The petitioners were selected by the Commission under Rule 5‑A but no appointments could be made during the year.

3. For the next calendar year, i.e. 1974, a new Rule, i.e. 5‑B, was added after Rule 5 by Notification dated 21‑12‑1973. This rule, likewise, comprised "Special provisions for recruitment during the calendar year 1974". The selection this time was to be made by a Selection Board. The candidates selected under this Rule were to rank, for the purpose of seniority inter se, in accordance with the order of merit assigned to them by the Selection Board. The Rule was, however, silent as regards their seniority qua other members of the Service. In all 50 candidates were selected under this Rule.

4. When the question of appointment arose, the Government decided, on 28‑3‑1974, that the 100 candidates recommended by the Commission in 1973 should also be appointed in addition to the 50 selected during 1974 and to give effect to this decision Rule 5‑B was amended and a notification was issued on 18‑5‑1974 as per following: ‑

"In exercise of the powers conferred by section 25 of the Punjab Civil Servants Ordinance, 1974, read with rule 5 of the Punjab Public Service Commission (Functions) Rules, 1974, and in partial modification of Rule 5 (B) of the West Pakistan Civil Service (Executive Branch) Rules, 1964 (hereinafter referred to as the Rules), the Governor of the Punjab is pleased to direct, in the public interest, that in addition to and not in derogation of the powers under rule 5 of the Rules to make appointments to the Provincial Civil Service (Executive Branch) (herein after referred to as the Service), the Government may, during the year 1974, fill such number of vacancies in the Service‑as it may deem fit from among the persons and manner specified below, that is to say

(i) from among the persons who were recommended by the Punjab Public Service Commission during the year 1973 for appointment to the Service in pursuance of the provisions of Rule 5 (A) of the Rules ;

(ii) from among the persons who were eligible for appointment under Rule 5 (B) of the Rules and have secured at least fifty per cent of the total marks of the written test conducted by the Services, General Administration and Information Department, Government of the Punjab, on the 2nd March, 1974, and are recommended for appoint ment by the Selection Board to be constituted by the Government for the purpose ;

(iii) the seniority inter se of the persons appointed under these provisions shall be determined in accordance with the order of merit assigned by the Commission, or as the case may be, by the Selection Board ; provided that persons belonging to category (i) shall rank senior to the persons belonging to category (ii) provided further that the persons appointed under these provisions shall rank junior to the persons appointed to the Service during the year 1974 under Rule 5 of the Rules."

5. It so happened that a week before the issue of the above notification, letters of appointment to the petitioners were issued on 10‑5‑1974, which according to the Tribunal was "due to lack of co‑ordination between the dealing sections". There is no mention in the letters of appointment of Rule 5‑A and for the applicability of rules it was stated that "their services shall be governed by the P. C. S. (E. B.) Rules, 1964 and other Rules, Regulations and Instructions as in force heretofore or issued in future". The appointees were asked that if they were "willing to accept this offer" they should communicate their acceptance within one week's time. The petitioners duly accepted the offer.

6. In the questioned seniority list, which was published on 11‑7‑1978, they were, however, shown junior to respondents Nos. 2 to 52. The particulars of the appointment of these respondents is as given in the Table below

TABLE

Sl. No.

No. of Respondents

Date of selection

Date of appointment

Method of recruitment

Remarks

1

2 to 4

2-10-1974

31-12-1974

Selected u/r 5.

Subsequently rule treating them as promotees and giving them presumptive seniority from 10-7-1974.

2

5

----

22-11-1974

By promotion from Tehsildar u/r 5.

3

6 to 19

10-5-1973

11-7-1974

By promotion from Naib Tehsildar u/r 5.

4

20 to 29

4-8-1973

16-2-1974

By direct recruitment u/r 5.

5

30 to 36

11-6-1974

18-9-1974

By direct recruitment u/r 5.

6

37 to 52

17-4-1973

Appointed on various dates after 18-5-1974

Selected u/r 5-A along with petitioners but with higher order of merit.

7. The petitioners challenged the seniority list in appeal before the Service Tribunal. Their case was that their appointment had to be considered under rule 5‑A, that as such they could be junior only to those appointed during 1973 but not to the respondents who were appointed in 1974 and that the notification dated 18‑5‑1974 having issued subsequent to their appointment was not applicable so them. They claimed seniority against respondents 2 to 4 on the ground that the latter had been selected under Rule 5‑B and as such had in any case to be treated to be junior to those appointed under Rule 5‑A. The Tribunal, however, came to view that Rule 5‑A had "ceased to be on the field before they came into Service" and that, even otherwise, by having participated in the selection under Rule 5‑B, the petitioners had "treated their first selection as a matter of past and closed transaction." As regards respon dents Nos. 2 to 4, the Tribunal held that the relaxation of rules in their favour was both competent and justified and that Rule 9 (3) of the 1964 Rules, whereunder a promotee ranks senior to a direct appointee of the same year, holds good in their case. The Tribunal accordingly dismissed the peti tioners' appeal.

8. Mr. Abid Hassan Minto, appearing for the petitioners, contended that notwithstanding the delay, the appointment of the petitioners was by virtue of Rule 5‑A, which Rule must be held to have continued to be in force even after 1973 in the case of persons appointed on the basis of selection made under that Rule. In regard to the applicability of the notification of 18‑5‑1974, his submission was that the same would cover appointments made on or after that date, such as those of respondents Nos. 37 to 52, but not appointments already made, such as that of the petitioners, which must be termed to be past and closed transactions in so far as the notification was concerned. He further submitted that the notification was applicable only to those "vacancies in the Service" a term used in the notification, which existed on that date and as such the posts already filled by the petitioners could not be termed to be "vacancies in the service", for the purposes of the notification. Referring to the condition contained in the appointment letters dated 10‑5‑1974 issued to the petitioners that their services shall be governed by Rules, Regulations and Instructions issued in future, he contended that the future Rules, Regulations and Instructions could be only those of general applicability to all the members of the Service and not special rules such as the one contained in the notification dated 18‑5 1974.

9. We are not impressed by these submissions. What is obvious is than Rule 5‑A had been added as a "special provision" for making direct recruitments, in deviation of the normal rules and was to cover appointments to be made only "during the period of one year commencing from the 1st day of January 1973". The Rule which was to operate during the specified period of calendar year of 1973, must stand lapsed on the expiry of that period and any reference to that rule thereafter can only be for the purpose of identifying the selectees concerned and not for claiming any right in terms of that rule for appointments made after that period. It is significant to note that while making Rule 5‑B, the relevant notification said: "After rule 5, the following new rule shall be added", which shows that the rule‑making authority was conscious of the fact that Rule 5‑A had lapsed and was ineffective for the purpose of appointments to be made during 1974, for which purpose Rule 5‑B was being added. In fact the appointment of the petitioners on 10‑5‑1974 was not governed by any rule in force at that time and this must have been in the knowledge of the authorities who while making the appointments took car to incorporate a condition that the appointees would be governed by Rules, Regulations and Instructions issued in future. In accepting the offer of appointment, the petitioners must be deemed bound by a notification subsequently issued such as that of 18‑5‑1974. There is also reason to believe, a observed by the Tribunal, that appointment of the petitioners had been made in pursuance of a decision already taken by the Government and reflected in the notification dated 18‑5‑1974 but that the issue of the notification had taken some time while the appointment letters had issued about al week earlier due to lack of co‑ordination between the dealing sections.

10. A contention raised that the notification of 18‑5‑1974 was ultra vice of the Punjab Civil Servants Ordinance (II of 1974) on the ground that the principle of seniority prescribed by the notification was in conflict with section 8 of the Ordinance is without substance. The notification itself had been issued by the Governor in the exercise of his powers under section 25 of the Ordinance, which enabled him to "make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Ordinance" Section 8 says that seniority or initial appointment to a Service, cadre, grade or post shall be determined in the prescribed manner. Since the appointment in question was not under the ordinary rules but under a special provision made for the purpose, it follows that the seniority of such appointees would be governed by the principle prescribed therein for determining seniority. We are satisfied that the case of the petitioners was governed by the notification dated 18‑5‑1974 and, therefore, the seniority was to be regulated as laid down in its clause (iii).

11. It was argued with some vehemence that at least respondents 2 to who had been selected under Rule 5‑B had to be placed junior to the petitioners who had been selected under Rule 5‑A, as is prescribed by clause (iii) o the notification dated 18‑5‑1974. The argument omits to take into consideration the fact that the appointment of the said respondents under Rule 5‑B had been later considered by the Government to have "caused undue hardship" to them and by notification dated 5‑3‑1977, they were "deemed to have been appointed to the said cadre by way of promotion from amongst Tehsildars with effect from the 10th July, 1974" and they were given seniority qua the other promotees with effect from that date. The said respondents had belonged to the Tehsildars' cadre and were normally eligible to appointment to the Service by promotion but by an order dated 1st January, 1974, their vacancies had been pooled for recruitment under the special provision of Rule 5‑B and the had been told that "they must complete for being appointed as Extra Assistant Commissioner and no appointments by promotion will be made". The circum stances leading to the decision to give them presumptive seniority has been discussed by the Tribunal. The Government had the power to relax the rule in their favour by virtue of section 22 of the Civil Servants Act (VIII of 1974).

12. All the respondents from serial Nos. 1 to 5 in the Table in para.6 above had thus been appointed in the year 1974 under the normal Rule 5, either by promotion or by direct recruitment and as such they had to taken precedence over the petitioners by virtue of clause (iii) of the notification dated 18‑5‑1974. The respondents at Serial No. 6 in the Table had beer assigned a higher order of merit vis‑a‑vis the petitioners in the selection and ass such they too had been rightly treated to be senior to the petitioners under clause (iii) of the notification of 18‑5‑1974. In the circumstance, the dismissal of the petitioners' appeal by the Tribunal is not open to exception. The petitions fail and are accordingly dismissed.

Petition dismissed.