Capt. (Recd.) ABDUL QAYYUM, EXECUTIVE ENGINEER vs MUHAMMAD IQBAL

ORDER

SHAFIUR RAHMAN, J.---A review of our judgment in Civil Appeal No.530/1980 (Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 is sought on three grounds: Firstly, it is contended that there was no continuity in maintaining seniority in service as a vested right after the decision in Bashir Ahmad Khan v. Mahmud Ali Khan Chowdhury and others PLD 1960 SC 195 as the Constitution of 1962 eroded or abolished it.

Secondly, it is contlnded that the Governor's residual power under section 23 of the Punjab Civil Servants Act, 1974 extends .To passing a just and equitable order and-the only limitation on this power is that it should not adversely affect the guaranteed statutory rights of the beneficiary himself. There is no restraint, express or implied, whereby such an Order cannot adversely affect guaranteed statutory rights of persons other than the beneficiary.

Thirdly, it is contended that the decision rendered is contrary to the established view of the Supreme Court expressed in Ch. Kabir Ahmad etc. v. Government of the Punjab etc. 1982 SCM R 978 and Wajahat Hussain, Assistant Director, Social Welfare, Lahore and 7 others v.Province of the Punjab through Secretary, Social Welfare & Zakat, Lahore and 81 others PLD 1991 SC 82.

2. The appeal under consideration had come to this Court by leave under Article 212(3) of the Constitution. The question of law of public importance required to be answered was as to whether the Governor could exercise his powers under section 23 of the Punjab Civil Servants Act in a manner to relax Rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 so as to affect the seniority of a number of other civil servants.

3. The undisputed position of law with respect to seniority in service dealt with in the case of Bashir Ahmad Khan PLD 1960 SC 195 finds mention in the following words:- " .... Every officer in a graded service has a vested right to a proper place in the seniority list. This is of the highest importance to him, as well as to the maintenance of proper discipline and order within the service, and consequentially to the public interest which is deeply involved in the maintenance of a proper spirit of order and a discipline within the service."

The Supreme Court held in Works Cooperative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430 that a judgment of the Supreme Court, a right declared thereunder, cannot be' overridden or nullified by an executive order, a rule or a dispensation short of legislative will.

4. In the Constitution of 1962, on two points relevant to the case, a clear intent was expressed. The first was that only with regard to specified matters the constitutional jurisdiction could be invoked by a civil servant. The second was that rules could be so framed as to determine even adversely the terms and conditions of service except those in respect of age, superannuation and remuneration. Nothing was expressly said about the seniority. It, however, followed that the seniority could be touched upon adversely by the rules and that the matters concerning seniority could not be brought before the High Court in the constitutional jurisdiction.

5. When the Civil Servants Acts came to be framed in 1973/1974, it was with full awareness of the legal and constitutional position that in respect of Federal Government, 'the North-West Frontier Province, the Balochistan Province, and the Sindh Province, it was expressly provided by the legislature that seniority shall not be a vested right and nobody would be entitled to claim a particular place in seniority list. The Punjab Civil Servants Act contained no express will of the legislature to that effect. The intention clearly was to respect and to abide by the declaration of law made by the Supreme Court with regard to seniority, to maintain order and discipline in service as dictated by public interest. On that view of the matter and legislative intent being so clear, it was held that in the Punjab unlike the other Provinces and the Federation, seniority continued to be a vested right in its pristine form as prior to 1962 though eroded in form from 1962 to 1973.

6. As regards the residual remedial power of the Governor contained in section 23 of the Punjab Civil Servants Act, the bounty, and the generosity of the Governor has been placed under a limit. It is not to be so exercised so as to infringe, impair or curtail any of the statutory rights of the beneficiary himself.' This is the recognition and effect of Article 4 and Article 240 of the Constitution.

The argument that the exercise of this power can ride rough over the statutory rights of others would amount to negation of rule of law, going beyond the constitutional parameters, subordinating of statutory rights to executive fiat. What folllows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by the law as anyone else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and considers just and fair but not at the cost of others, not even at the slightest cost of the statutory rights already granted to the beneficiary. This is a power of redressal.

Of providing a relief and not of impairing statutory rights of anyone.

7. The decisions referred to by the learned counsel have been reexamined by us. In the case of Wajahat Hussain PLD 1991 SC 82, the question was not of adversly affecting the right of others but of merging of different services into one and giving effect to transfer provision of Civil Servants Act on such merger. In the other case referred to also there was no question of power exercised by the Governor to relax the rules so as to adversly affect others and impair the vested rights of others.

8.No merit is found and the review petition is dismissed.

I am recording a short note of my own.

(Sd.)

(NASIM HASAN SHAH), Judge.

(Sd.)

SHAFIUR RAHMAN, Judge.

I agree with HJ (1)

(Sd.)

(MUHAMMAD RAFIQ TARAR), Judge.

NASIM HASAN SHAH, J.-- I agree; but would like to add that the order of the Governor of the Punjab made in relaxation of rule 8 of the Punjab Civil Servants (Appointment and Conditions of Services)

Rules, 1974, and issued on 18th July, 1979, is a just and equitable order passed to redress the hardship suffered by the petitioner for being retained compulsorily, up to 1975 in the Frontier Works Organization of the Pakistan army in order to render service in a project of the highest national importance namely Kara Koram' Highway Project, during which period younger and less experienced persons were able ~o join the Government of the Punjab in the Communication and Works Department. But, as rightly pointed out by my learned brother S. Rehman, J., the residual power conferred on the Governor under section 23 of the Punjab Civil Servants Act, 1974, extends only to passing a just and equitable order which may benefit the aggrieved civil servant to alleviate his hardship but such an order cannot impair any of the statutory rights vesting in other civil servants. Thus, in the Punjab where seniority continues to be a vested right, the seniority position of other civil servants cannot be affected while undoing the hardship of another civil servant inasmuch as section 23 confers a power of redressal which does not extend to impairing the statutory rights of others.

But it needs to be observed that redressal in the Punjab in this sphere too is possible of suitable cases but in another way. Under a r)ew provision introduced in the Punjab Civil Servants Act, 1974 namely section 8-A the competent authority has been empowered to grant out of turn promotion to a civil servant exhibiting extraordinary ability in discharge of his duties. Considering that presently the contest ranging between the parties is in esse.Nce who should be considered for promotion to the post of Superintending Engineer earlier than the other, the petitioner can, if indeed by reason of his longer experience, intellectual calibre and greater ability has exhibited ext: (aordinary capabilities in the performance of his duties, be promoted first to the rank of Superintending Engineer notwithstanding his lower position in the seniority list. However, so far as the four private respondents in this case are concerned their case will not be affected by these observations.

I would dispose of this review petition with these observations.