SUPREME COURT OF AZAD JAMMU AND KASHMIR [Appellate/Review Jurisdiction]

Transcription

1 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 ) 1. Syed Subtain Hussain Kazmi, Tehsildar, Presently posted at Bagh Development Authority. 2. Muhammad Ismail, Tehsildar, presently posted at Patikha, Sub Division. 3. Abdul Haleem, Tehsildar, presently posted at Hajira, District Poonch. VERSUS. ASPPELLANTS 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. RESPONDENTS 3. Azad Government through its Chief Secretary, Muzaffarabad. 4. Board of Revenue through its Secretary, New Secretariat, Muzaffarabad. 5. Selection Committee through its Chairman having his office at New Secretariat, Muzaffarabad.

2 2 6. Commissioner Muzaffarabad Division, having his office at old Secretariat, Muzaffarabad. PROFORMA-RESPONDENTS (On appeal from the Judgment of the Service Tribunal dated in service appeal No. 365 of 2009) FOR THE APPELLANTS: FOR THE RESPONDENTS: AMICUS CURIAE: Kh. M. Nasim, Advocate. Sardar Karam Dad Khan, Advocate. M/S Abdul Rashid Abbasi and Raja Muhammad Hanif Khan, Advocates. Civil Review No. 4 of 2009 (Filed on ) 1. Manzoor Maqbool, Divisional Forest Officer, Muzaffarabad, Forest Division, Bank Road, Muzaffarabad. 2. Sh. Abdul Hameed, Divisional Forest Officer, Range Land Central Plate, Muzaffarabad. VERSUS. PETITIONERS 1. Asad Mehmood Malik, Divisional Forest Officer, presently posted at Bagh, Tehsil & District Bagh. RESPONDENT 2. Azad Jammu & Kashmir Government through its Chief Secretary, having his office at New Secretariat Complex, Lower Chatter, Muzaffarabad.

3 3 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 in civil appeal No. 47 of 2007) FOR THE PETITIONERS: FOR THE RESPONDENTS: AMICUS CURIAE: Raja Muhammad Hanif Khan, Advocate. Sardar Abdul Sammie Khan, Advocate. Mr. Abdul Rashid Abbasi Advocate. Date of hearing: 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 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 , whereby appeal filed by respondent No.1 has been accepted. Having involved the common legal

4 4 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 through an appeal in the Service Tribunal. According to their version, they were inducted into service as Naib Tehsildar, B-14 vide orders dated and , 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 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 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

5 5 Conservator of Forests vide order dated , 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 on the recommendations of the Selection Board No.3 with retrospective effect from and Respondent No.1 assailed the notification dated 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 board s meeting or initiation of process on the part of the authority, they cannot be penalized. He further submitted that the appellant s promotion will be

6 6 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

7 7 anti-dated promotion whereas in the impugned judgment it also appears that 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

8 8 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 2 of the Act which speaks that the appointments which are made in 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

9 9 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 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 submitted that the term regular appointment 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 means permanent appointment against the post after following the

11 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 others vs. Government of Balochistan and others, [2002 PLC (CS) 47], Muhammad Siddique Ahmed Khan vs. 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 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. According to this statutory provision, the seniority on initial appointment to service, cadre, grade or post shall be determined in

13 13 the prescribed manner. Whereas, the seniority in the grade 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 Act in juxtaposition with the Rules, 1977, it becomes clear that it refers only to the regular permanent appointment either; by initial recruitment, transfer or promotion excluding the appointments on acting

14 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 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 but undoubtedly he was confirmed against this post by the competent authority vide order dated w.e.f It was laid down in this order itself that the retrospective effect given to the petitioner s 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 Finally vide notification dated he was promoted to BPS-18 w.e.f

16 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 be considered when the selection board recommended respondent No.6 for further promotion on and the said recommendations were approved by the syndicate on and later on notified on 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 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 with all pensionary benefits and was appointed in CAA on , 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 8 th August 1995 unambiguously disclosed status of respondent Yar Muhammad Khan being 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, his seniority was properly fixed keeping in view

18 18 provision of rule 3 (3) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as amended and instructions issued by the establishment division regarding absorption of surplus employees. Besides rule 4 of civil servants seniority Rules, 1993 promulgated by notification S.R.O. (I) /93, dated 28 th 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 on his appointment by transfer 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 19 transferred and absorbed on account of conscription; the seniority of above respondent in tourist services department held to be reckoned from the date of his regular appointment against permanent post. It 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 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 the whole scheme and wisdom of legislature. This Court, while dealing with 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 21 Therefore, as a general rule the Court should avoid a 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 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 a 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 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 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 some words idle and nugatory. 7. The next rule in construing a 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. The best mode of ascertaining the 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 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 the constitution must be interpreted in a broad and liberal manner giving effect to all its parts and the presumption 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 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 a 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 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 1 of Manual of Audit Instructions, reproduced in combined

27 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 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 posts of cash Counters/Clerks, depending on their earning satisfactory reports, vide para, 1 of the order dated 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

28 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 year s, 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 their promotion to said post. from the date of There is no force in the contention of learned counsel for respondent No.1 that regular promotion of Intizar Ahmad and Muhammad Mushtaq Jawaid as S.P.Ms. depended upon their passing the departmental examination. There is no mention in the order of promotion dated 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 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 Engineering Officers Association and others 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 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 to post in the same grade in a 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 a 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 31 shall rank senior to the younger person. Explanation-I xxx xxx xxx Explanation-II xxx xxx xxx Explanation-III xxx xxx xxx. (2) The seniority of the persons appointed by initial recruitment to the grade vis-à-vis those appointed otherwise 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 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 Black s Law Dictionary With Pronunciation,, Sixth Edition, page 322, the word continuous has been defined as following:- Continuous. Uninterrupted; unbroken; not intermittent or 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 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 Rules. The word continuous has not been 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 would be the date on which 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 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 effect cannot be 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 and it is also an admitted feature of the case that they could not complete their

35 35 training and remained ousted from service till There is no denying the fact that they were reinstated by the Review Board vide order, dated wherein it has been clarified categorically that no back benefits would be given and it was a reinstatement simpliciter without any sort of back benefits. This order, dated 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 the real benefit. It can thus simply 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 on duty by granting extraordinary leave without pay. It was not an accidental omission

36 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 We have also examined the order, dated 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 27 th December, No /66-Admn-1/71 (II). M/s. Ghulam Rasool son of Mir Karim Bakhsh, caste Raisani, resident of Dhadar (Karachi District) and Muhammad Nasir son of Nek Muhammad, caste Mengal resident of Wadh (Kalat District) are hereby accepted as direct Tehsildar. They will undergo necessary training as prescribed in the West Pakistan Tehsildari and Naib Tehsildari Departmental Examination and Training Rules, 1969 against the newly-created two posts of Tehsildars for

37 37 Settlement training during the current financial year, ; (2) During the training period, they will be entitled to such pay and allowances as admissible under Rules. They are 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 completion of training and passing the Departmental 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 the Medical Board 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 38 9. A careful perusal of the said order would reveal as follows:-- (a) The petitioners were neither appointed as Tehsildar nor posted as such but only their candidature as Tehsildar was accepted. (b) They were required to undergo necessary training as prescribed in the West Pakistan Tehsildars and Naib Tehsildars Departmental Examination and Training Rules, 1969 and only after successful completion of training and passing Departmental Examination they could claim the post of Tehsildar. (c) Even after the completion of training their postings as Tehsildar was subject to availability of posts

39 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 placed regarding conferment of seniority with retrospective effect by Review Board for the simple reason that order, dated 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 to any damages, compensation or 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 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 promotion, is not permissible under the 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 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 a result of promotion is not supported by any 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-à-vis those appointed otherwise shall be determined with reference to the date of continuous appointment to the grade; Provided that if two dates are the same, the persons appointed otherwise shall rank senior to the person appointed by initial recruitment;

42 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 basic requirements are regular appointment to the post, grade or 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 cannot be termed as regular appointments. It is almost now settled that the proforma or anti-dated promotion orders are made by the Government while exercising the inherent powers

43 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 be construed to limit or abridge the 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 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 it a retrospective effect, even if the same adversely affects the seniority of other civil servants. It may be stated 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 to a case reported as Muhammad Iqbal Khokhar v. The Government of the Punjab (PLD 1991

45 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 Shafi-ur-Rehman made the following observations in Iqbal Khokhar s case, referred to above:- 13. The only question that remains to be 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 46 Rules and 15 (1) (a) of the Service Rules, 1967 in a 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 for the period to 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 to the post of Executive Engineer do not by themselves prejudicially affect anyone, and are, therefore, not in

47 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 of the law. See Federation of Pakistan vs. Muhammad Saifullah Khan PLD 1959 SC 166, where the President of Pakistan s 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