NASIMULHAQUEMALIK Versus CHIEFSECRETARYTOGOVERNMENTOFSINDH,KARACHI

MUHAMMAD BASHIR KHAN JEHANGIRI, J .‑‑‑This judgment disposes of the above two identical appeals filed under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, by the appellant against the judgment of the Sindh Service Tribunal, Karachi, dated 14‑9‑1994 whereby respondents Syed Zahid Ali and Miss Hamida Akhtar were declared senior to the appellant. .

2. Brief facts relevant for the purposes of the controversy are that Syed Zahid Ali respondent No. 4 (in C.A. No. 944/1993) was appointed as Inspector in the Cooperative Department off the erstwhile Government of West Pakistan on 29‑11‑1955 while Miss Hamida Akhtar respondent No. 4 (in C.A. No. 945 of 1993) was similarly appointed on 7‑1‑1964 (hereinafter called as the answering respondents). Subsequently, both of them were promoted as Assistant Registrars on ad hoc basis. Ultimately, their promotions were regularised vide orders dated 19‑11‑1977 of Labour and Cooperatives Department of Sindh to whom their services stood transferred on the dissolution of the Province of West Pakistan. On the contrary, Nasimul Haque Malik appellant and Kausar Nasim Qureshi respondent No. 5 (in both C.As.) (hereinafter called as the appellants) were directly inducted as Assistant Registrars by the Sindh Public Service Commission on 14‑5‑1981 and 18‑7‑1981 respectively. In the seniority list of Assistant Registrars issued in 1982, the answering respondents were placed senior to the appellants. Thereupon, the appellants made departmental representations which after protracted proceedings were finally accepted by the Chief Secretary to Government of Sindh whereby they were declared senior to the answering respondents on the ground that at the time when the latter were promoted as Assistant Registrars no vacancy in the quota of the departmental promotees was available and that their promotion had been made against the direct appointees in violation of service rules governing the parties.

3. Feeling dissatisfied, the answering respondents filed two separate appeals before the Service Tribunal, Sindh to call in question the order dated 15‑6‑1993 passed by the Chief Secretary (respondent No. 1). The appellants in their respective written statements, besides taking few legal objections, reiterated their stance that as they had been appointed against substantive posts by initial recruitment, they had been correctly assigned seniority above the answering respondents who had been promoted against temporary posts.

4. The learned Tribunal while dealing with the controversy had conceded that the answering‑respondents had entered the cadre of Assistant Registrars as promotees while the appellants were inducted as direct recruits. It was, however, held that under subsection (3) of section 8 of the Sindh Civil Servants Act, 1973 read with sub‑rule (1) of Rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, seniority of the direct recruits was to be determined from the dates of their induction in service on 14‑5‑1981 and 18‑7‑1981. On the other hand, subsection (4) of section 8 of the Civil Servants Act, 1973, was invoked to hold that the seniority of a promotee was to be reckoned from the date of his regular appointment to the higher grade. On this hypothesis, the Tribunal reached the conclusion that the appellants were entitled to claim their seniority from 14‑5‑1981 and 18‑7‑1981 when they were appointed by the Sindh Public Service Commission whereas the answering respondents were held entitled to count their seniority under rule 8(4) of the Seniority Rules ibid from 19‑11‑1977 when their ad hoc promotions were regularised. The conclusion thus reached was that the answering‑respondents' "regular appointment being earlier than that of the appellants, the former would normally be senior to the latter". The correctness of the appellate orders of the Chief Secretary passed in favour of the appellants on the basis of quota determined under clauses(a) and (b) of sub‑rule (10) of rule 5 of the West Pakistan Cooperative Service (Class II) Rules, 1963, was conceded by the Tribunal. The intimation qua existence of 23 permanent vacancies of Assistant Registrars by virtue of letter dated 1‑7‑1990 was held as irrelevant, for, "it did not reflect the position of vacancies available in 1977". Again the words "for the time being" were interpreted to convey that the quota of departmental promotions was liable to be enlarged or reduced dependent upon the requirement of the departmental authorities and further that "for such change no amendment would be necessary in the substantive law (i.e. West Pakistan Cooperative Service (Class II) Rules, 1963)". Lastly rule 3(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, was invoked by ‑ the Tribunal to hold that the quota fixed by 1963 Rules could be enhanced and reduced and further that "the Chief Minister who was the rule‑making authority could approve the change in the quota even without making the formal amendment". It was thus maintained that at the time of promotion of the answering respondents as Assistant Registrars on regular basis the vacancies in the promotees' quota were available.

5.Leave to appeal was granted to consider whether the promotion of the answering‑respondents as Assistant Registrars on regular basis in the year, 1977, violated the rule laid down by this Court in the case of Federation of Pakistan v. Azam Ali and others (1985 SCMR 386):

6. Mr. M.M. Aqil, learned counsel for the appellant, while making reference to rule 5 of the West Pakistan Cooperative Service (Class II), Rules, 1963, contended that fifty per cent. of the vacancies of Assistant Registrars were to be filled by direct recruitment on the recommendations of the Provincial Public Service Commission while the remaining fifty per cent. vacancies were to be filled by promotion and that at the crucial juncture in 1977, the answering respondents were illegally regularised, in that, no vacancy for promotion in departmental quota was then available. The learned counsel for the appellant reiterated his contention which had also been raised before the Service Tribunal that ratio of 50:50 for promotion to the posts of Assistant Registrars for promotees and direct recruits had continued to hold ground as no change had been made in the said ratio at least until the appointments of the parties to the disputed posts were concerned. In support of this proposition the learned counsel Placed reliance on the case of Federation of Pakistan v. Azam Ali and others (1985 SCMR 386).

7. As against this, Mr. Muhammad Nawaz Abbasi, learned counsel for respondents Nos. 1 to 3 as well as Mr.‑ Nooruddin, learned counsel for respondent No. 4 (Syed Zahid Ali) had reiterated the grounds which had weighed heavily with the Tribunal in accepting the appeals.

8.The crucial question falling for determination is whether the interpretation put by the learned Tribunal on section 9(1) of the Sindh Civil Servants Act (XIV of 1973) is correct. Section 9(l) ibid reads as under:‑‑

"A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in the higher grade of the service of cadre to which he belongs."

The construction put on the words "for the time being" occurring in section 9(1) ibid, to say the least, is against all the cannons of interpretation of statutes: one such rule being that nothing is to be read into a statute which is not expressly enacted therein.

9. From the above narration of the legal and factual background of. the controversy, it is not disputed that West Pakistan Cooperative Service (Class II) Rules, 1963, regulating the maintenance of quota of direct recruits and the promotees held the ground. Even otherwise, adherence to quota laid down in the 'rules governing a particular class of civil servants has been taken care of in section 9 of the Sindh Civil Servants Act, 1973, creating an eligibility for departmental employees for promotion to the higher grade only against the reserved posts and none else. In this context, reference may also be made to the law laid down by their Court in the case of Federation of Pakistan v. Azam Ali and others (1985 SCMR 386). In support of the interpretation alluded to above, the Tribunal made reference to rule 3(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which provides that:

"The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Department concerned in consultation with the Services and General Administration Department. "

A bare reading of the above rule would show that it does not confer on the Chief Minister or for that matter the competent authority any power of enhancement or reduction of quota in the promotion of any categories of civil servants. The construction thus put on the rule by the Service Tribunal is not warranted at all. Even if the Chief Minister was competent to enhance or reduce G the quota of the two categories of the civil servants involved in this case, he could do so by making amendment in the relevant rules. In this context, no alteration in the statutory quota laid down for promotion of a given category can be assumed by implication.

10. The Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, are silent on the point of determination of inter se seniority of Inspectors who are promoted and those who are directly appointed by the Public Service Commission, and rightly so, because it has been taken care of in rule 5(1)(a) and (b) of the West Pakistan Cooperative Service (Class II) Rules, 1963 which finds specific reference in section 9 of the Sindh Civil Servants Act, 1973. The attention of the Tribunal seems to have not been drawn or it has not adverted to section 9 of the Act that departmental candidates are eligible for promotion only against the quota reserved under rules for their promotion. As we have noticed earlier, it is not disputed that reservation was in the ratio of 50:50 per centum in favour of the promotees and direct recruits. In a similar situation, this Court has in Azam Ali's case supra observed that:‑‑

"It follows from section 9 of Act, which provision the Tribunal failed to even take note of that departmental candidate are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent. in favour of the direct recruits. The departmental candidates were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion for excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes sometime in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of in isolation is not in accord with the express provisions of section 9 of the Act."

The observation of the Tribunal that in the departmental intimation vide letter dated 1‑7‑1990 there were 23 permanent posts of Assistant Registrars and that 11 were reserved for direct recruits while the remaining 12 had fallen to the share of promotees but in, fact 21 promotees and 5 direct recruits were actually working reflected the position obtaining in 1977. On our query, the intimation by teleprinter message received on 4‑3‑1996 from the Secretary to the Government of Sindh in the Food and Cooperative Department reads as under:‑‑

"NUMBER: SO(C.II)2‑19/94 Karachi Dated the February, 96 (.)

SUBJECT: CIVIL APPEALS NOS. 944, 945, 295 AND 296194

Reference Telephonic talk with Deputy Secretary, Food and Cooperation Department, Government of Sindh, the required Cooperation Department, Government of Sindh, the required information in respect of Appeals Nos. 944 and 945 is as under:‑‑

(A) Sanctioned strength of the posts of Assistant Registrar, Cooperative Societies in the year 1977 was 23(.)

(B) No direct recruitment was made during the year 1977(.)

(C) No fresh promotions were made in the year 1977 except 22 ad hoc promotees were regularised vide this Department Notification No. SO (C.II) 1/24/75, dated 19th November, 1977 (.)"

It follows from the above reproduced tele-printer message that the position dated 1‑7‑1990 which was taken note of by the Tribunal actually was of 1977.

11. The findings of the Tribunal are thus in direct conflict with the dictum laid down by this Curt in Azam Ali's case supra. The result is that as regularization of the promotee in 1977 was not against the vacancies reserved for promotion in terms of section 9 of the Sindh Civil Servants Act, 1973, for which alone they were eligible for promotion, their promotion would be regular from the date that a vacancy reserved under the West Pakistan Co‑operative Service (Class II) Rules, 1963 for departmental promotion occurred. These two appeals are, therefore, accepted and the impugned order of the Sindh Service Tribunal is set aside. Respondent No. 2 shall issue a fresh list of seniority based upon rule 5 of the West Pakistan Cooperative Service (Class II) Rules, 1963, read with section 9 of the Sindh Civil Servants Act (XIV of 1973) as on 14‑5‑1981 and 18 7‑1981 when the appellants were directly recruited. There will, however, be no order as to costs.

A.A./N‑463/S Appeals accepted.